Hazardous Waste & Environmental Response Conference – November 25th & 26th

The Hazardous Waste & Environmental Response Conference is scheduled for November 25th & 26th at the Mississauga Convention Centre in Mississauga, Ontario.  The event is co-hosted by the Ontario Waste Management Association and Hazmat Management Magazine.

This 2-day conference provides an essential and timely forum to discuss the management of hazardous waste and special materials, soils and site remediation, hazmat transportation, spill response and cutting-edge technologies and practices. Valuable information will be provided by leading industry, legal, financial and government speakers to individuals and organizations that are engaged in the wide range of services and activities involving hazardous and special materials.

Attendees can expect an informative and inspiring learning and networking experience throughout this unique 2-day event. Session themes provide an essential and timely forum to discuss the management of hazardous waste and special materials, soils and site remediation, hazmat transportation, spill response and cutting-edge technologies and practices.

As the only event of its kind in Canada, delegates will receive valuable information from leading industry, legal, financial and government speakers who are actively engaged in a wide range of services and activities involving hazardous waste and special materials.

Company owners, business managers, plant managers, environmental professionals, consultants, lawyers, government officials and municipalities – all will benefit from the opportunity to learn, share experiences and network with peers.

CONFERENCE SCHEDULE

MONDAY, NOVEMBER 25 – GENERAL SESSIONS

8:00 am – Registration

8:45 am – Opening and Welcome Address

9:00 am – 9:40 am

OPENING KEYNOTE – Lessons Learned from Hazmat Incidents

Jean Claude Morin, Directeur General, GFL Environmental Inc.

Dave Hill, National Director Emergency Response, GFL Environmental Inc.

Jean Claude and Dave will discuss lessons learned from hazmat incidents in Canada, including, train derailments, truck turn-overs, and hazardous materials storage depot explosions. This presentation will also provide an overview of some of the more serious incidents in Canada and discuss the valuable lessons learned regarding best practices in hazmat response.

9:40 am – 10:10 am

Legal Reporting Requirements

Paul Manning, LL.B., LL.M, Certified Specialist in Environmental Law and Principal, Manning Environmental Law

Paul will provide an overview of the Canadian federal and Ontario legislation as it relates to the reporting requirements in the event of a hazmat incident and/or spill. Included in the discussion will be an examination of the case law related to hazmat incidents and failure to report.

10:10 am – 10:45 am – Refreshment Break             

10:45 am – 11:15 am

Hazmat and Spill Response Actions and the Utilization of Countermeasures

Kyle Gravelle, National Technical Advisor, QM Environmental

Kyle will be speaking on hazmat and spill response actions and countermeasures to prevent contamination. Included in the presentation will be real-world examples of incidents in Canada and advice on preparations and hazmat management.

11:15 am – 12:00 pm

PANEL DISCUSSION: Utilization of New Technologies for HazMat Emergency Response

Moderator:  Rob Cook, CEO, OWMA

James Castle, CEO & Founder, Terranova Aerospace

Bob Goodfellow, Manager, Strategic Accounts & Emergency Response, Drain-All Ltd.

Ross Barrett, Business Development/Project Manager, Tomlinson Environmental Services Ltd.

The hazmat and environmental response sector is quickly evolving. During this discussion, panelists will share their experiences on new technologies and methodologies for the management of hazmat and environmental incidents and provide advice on what companies should do to be better prepared for hazmat incidents.

12:00 pm – 1:30 pm – Luncheon Speaker

From Hacking to Hurricanes and Beyond – The New Era of Crisis Communications

Suzanne bernier, CEM, CBCP, MBCI, CMCP, President, SB Crisis Consulting, Founder & Author of Disaster Heroes

During any crisis, communicating effectively to all key stakeholders is key. This session, delivered by a former journalist and now award-winning global crisis communications consultant, will look at the evolution of crisis management and crisis communications over the past 15 years. Specific case studies and lessons learned from events like the recent terror and mass attacks across North America, as well the 2017 hurricane season will be shared, including Texas, Florida and Puerto Rico communications challenges and successes. The session will also review traditional tips and tools required to ensure your organization can communicate effectively during any crisis, while avoiding any reputational damage or additional fall-out that could arise.

1:35 pm – 2:15 pm

Fire Risk in Hazmat and Hazardous Waste Facilities – The Impact and Organizational Costs 

Ryan Fogelman, Vice President of Strategic Partnerships, Fire Rover

Fire safety is an important responsibility for everyone in the hazardous materials & waste sector. The consequences of poor fire safety practices and not understanding the risk are especially serious in properties where processes or quantities of stored hazmat and waste materials would pose a serious ignition hazard.

In an effort to prevent fires and minimize the damage from fires when they occur, owners, managers and operators of hazmat and related facilities will learn about fire safety and how to develop plans to reduce the risk of fire hazards.

Learn about:

  • Data and statistics on waste facility fire incidents
  • Materials and processes that create a fire risk
  • Planning and procedures to reduce fire risk
  • Tools and practices to detect, supress and mitigate fire damage.

2:15 pm – 2:45 pm

Implementation of Land Disposal Restrictions (LDR) in Ontario – Treatment Requirements & Associated Costs

Erica Carabott, Senior Environmental Compliance Manager, Clean Harbours Inc.

The field of hazardous waste management in Ontario is complex and places an onus on all parties involved, including, generators, carriers, transfer and disposal facility operators. Initiatives such as pre-notification, mixing restrictions, land disposal restrictions, recycling restrictions and the requirements of the Hazardous Waste Information Network (HWIN) all add to the cumbersome task. The Landfill Disposal Restrictions (LDR) place responsibilities on generators and service providers alike. This presentation aims to navigate the implementation of LDR in Ontario, with specific emphasis on the Clean Harbors Sarnia facility to accommodate LDR treatment and the significant costs associated with it.

2:45 pm – 3:15 pm – Refreshment Break

3:15 pm – 4:00 pm

New Requirements on the Shipment of Hazardous Goods – Provincial, Federal and International   

Eva Clipsham, A/Safety Policy Advisor for Transport Canada

Steven Carrasco, Director, Program Management Branch, Ontario Ministry of the Environment, Conservation and Parks (MOECP)

Current federal and provincial frameworks for regulating the movement of hazardous waste and materials are currently undergoing change. Manifesting systems are being upgraded and refocused as electronic systems that will provide efficiencies to both generators and transporters. Learn about the current federal and provincial systems and the changes that are anticipated to be implemented in the near future.

4:00 pm – 5:00 pm – All attendees are invited to attend the Tradeshow Reception!

TUESDAY, NOVEMBER 26

8:30 am – Registration

8:45 am – Opening & Welcome Address

9:00 am – 9:45 am

Management of contaminated sites & increasing complexity and cost

Carl Spensieri, M.Sc., P.Eng., Vice President Environment, Berkley Canada (a Berkley Company)

This presentation will explore the various elements contributing to the increasing complexity and cost of managing contaminated sites. Carl will examine emerging risks and speak to potential strategies we can use to mitigate them. This presentation will also highlight opportunities for conference participants to offer new services that help owners of contaminated sites best respond to existing and emerging challenges.

9:45 am – 10:10 am – Refreshment Break

TRACK 1: HAZARDOUS WASTE GENERATION, TRANSPORTATION, TREATMENT AND DISPOSAL

10:15 am – 10:55 am

A National Perspective on the Hazardous Waste

Michael Parker, Vice President, Environmental Compliance, Clean Harbours Inc.

Hear about the challenges and opportunities facing the hazardous waste, hazmat and emergency response sector from an industry leader with a national view. The industry is evolving and the business fundamentals are ever changing. Government administrative and technical burdens are increasing and the volume of hazardous waste is declining – what will the future hold?

11:00 am – 11:40 am

PANEL DISCUSSION: Hazardous Waste & Special Materials – Transportation & Transit Challenges

Jim Halloran, Regional Manager, Heritage – Crystal Clean Inc.

Doug DeCoppel, EH&S Manager, International Permitting and Regulatory Affairs, GFL Environmental Inc.

Frank Wagner, Vice President Compliance, Safety-Kleen Canada Inc.

This panel will discuss key transportation issues and compliance challenges faced by hazardous waste generators and service providers, including significant changes to the documentation, labelling, packaging, emergency planning, and reporting requirements for hazardous waste and special materials shipments resulting from updated regulations and proposed initiatives. The panel will also review key considerations when selecting service providers to manage hazardous waste and special materials.

Topics included in this discussion: E-manifests (provincial and federal – lack of e-data transfer capabilities), HWIN fees (300% increase in fees but no increase in service), Transboundary Permits (lack of e-data transfer capabilities), container integrity and generator awareness.

11:45 am – 12:25 pm

Factors Influencing Treatment and Disposal Options for Hazardous Waste in Ontario

Ed Vago, Director of Operations, Covanta Environmental Solutions

Dan Boehm, Director of Business Development, Veolia ES Canada Industrial Services Inc.

Learn about the many recycling, treatment and disposal options for hazardous waste and hazardous materials in Ontario. Hear about the regulatory and operational factors to consider when deciding on the best management approach.

TRACK 2: SITE REMEDIATION

10:15 am – 10:55 am

Soils – Dig and Dump vs. On-Site Remediation: Factors to Consider & Case Studies

Devin Rosnak, Senior Client Manager & Technical Sales Manager, Ground Force Environmental

D. Grant Walsom, Partner, XCG Consulting Limited, Environmental Engineers & Scientists

Mark Tigchelaar, P. Eng., President and Founder of GeoSolv Inc.

Developers of brownfield site are faced with decisions around how to manage excavated soils. Impacted soils and soils with hazardous characteristics as tested at the site of generation can be managed through on-site remediation, or can be removed from the site to a variety of remediation and/or disposal options. Learn about the key options and factors that contribute to determining the optimum approach to managing soils.

11:00 am – 11:40 am

The Legal Framework for the Management of Contaminated Sites and Materials      

John Tidball, Partner, Specialist in Environmental Law, Miller Thomson LLP

The management of contaminated sites and related materials, including soils, are constrained by both regulatory and legal framework. Hear from a legal expert with unparalleled experience about the regulatory and legal issues that all developers/excavators transporters and service providers should be aware of as the legal liabilities in this area can be significant.

11:45 am – 12:25 pm

Anaerobic Bioremediation & Bioaugmentation – from the Lab to the Field

Dr. Elizabeth Edwards (Professor), Dr.Luz Puentes Jacome, Dr. Olivia Molenda, Dr. Courtney Toth, Dr. Ivy Yang (all Post doctoral fellows in the lab), Chemical Engineering & Applied Chemistry, University of Toronto

Together with her Post-Doctoral team, Dr. Edwards will present an overview of anaerobic bioremediation and bioaugmentation with some examples from their research and its application to the field.

12:30 pm – 2:00 pm

CLOSING KEYNOTE & LUNCHEON SPEAKER

Andrea Khanjin, MPP Barrie-Innisfil, Parliamentary Assistant, Ministry of the Environment, Conservation and Parks (MOECP)


Diamond Sponsor

 

 

 

 

 

Emerald Sponsor

 

 

 

 

Supporting Sponsors

 

 

 

 

 

 

 

 

 

 

ONEIA’s Environment Industry Day – November 18th, 2019

Ontario’s Minister of Environment, Conservation and Parks to co-host closing reception of Environment Industry Day on Nov 18 – register now
Enjoy a day of programming and networking, help shape the policies that impact your business and meet the Environment Minister 

The Ontario Environment Industry Association is pleased to invite you to join us for Environment Industry Day 2019 (EID 2019) on November 18.  Representatives of environment and cleantech companies from across Ontario will come to Queen’s Park for an exciting day of dialogue and networking – the highlights of the day will include:

Breakfast pitch presentations featuring innovative companies: This year, EID falls on the start of Global Entrepreneurship Week, so we will start the day with a breakfast pitch presentation from a range of innovative companies that are developing the next generation of environmental solutions for Ontario and the world.

Visit to Question Period: Attendees will visit the gallery for morning Question Period to hear the announcement recognizing EID and stay for the daily debate between MPPs.

Networking luncheon on “What’s holding back environment companies?”:  ONEIA will host a networking luncheon with a guest speaker or panel (to be announced) on the issue of barriers to growth in our sector. Minister of Small Business and Red Tape Reduction Prabmeet Sakaria will deliver remarks.

Afternoon business table discussions: The afternoon will see attendees join discussions about the barriers that are holding back their businesses– and what we can do, together with government, to resolve them.  Discussions will explore such topics as Brownfields/Soil, Waste and organics, environmental consulting, and water/wastewater/stormwater.

MPP and Minister meetings:  ONEIA schedules meetings with MPPs, cabinet ministers and opposition leaders throughout the day. Please note that only ONEIA members can volunteer for these teams and the final selection of who participates in them is determined by the organizing committee to ensure that the teams are representative of our industry.

Reception with the Environment Minister:  Attendees will close the day with a reception co-hosted by the industry and The Hon. Jeff Yurek, Minister of Environment, Conservation and Parks.  This reception will feature dozens of MPPs, senior staff, cabinet ministers and prominent figures from across our industry.

DATE:  Monday, November 18, 2019
TIME:  Morning registration at 8:30 AM, pitch competition starts promptly at 9, followed by a visit to Question Period; luncheon and business table discussions to follow at Hart House, with closing reception from 5:00 to 7:30.
COST:  ONEIA members $245 / not-yet ONEIA members $295
TO REGISTER:  Visit https://environmentindustryday2019.eventbrite.com

Consider becoming a sponsor of EID for as little as $750 – and all sponsorships include tickets to the event.  To discuss these opportunities, please contact Janelle Yanishewski at [email protected].

TPH Risk Evaluation at Petroleum Contaminated Sites

Written by Abimbola Baejo, Staff Reporter

This report is from a webinar
conducted by the Interstate Technology and Regulatory Council (ITRC) Total
Petroleum Hydrocarbon Risk Evaluation Team and the US EPA Clean up Information
Network on the 19 of June 2019. https://tphrisk-1.itrcweb.org/

The webinar was made to facilitate
better-informed decisions made by regulators, project managers, consultants,
industries and stakeholders, on evaluating the risk of TPHs at petroleum contaminated
sites.

What is TPH?

In environmental media, crude oil and individual refinery products are typically characterized as TPH. They are made up of hydrocarbons along with other elements such as nitrogen, oxygen, sulphur, inorganics and metals. The refining process generates various commercial products such as kerosene, diesel, gasoline; with over 2,000 petroleum products identified. These products are made up of various number of carbon atoms which may be in straight or branched chain forms.

TPHs can be found in familiar sites such refineries, air- and seaports, offshore sheens, terminals, service stations and oil storage areas. Hydrocarbons can be broadly classified into aliphatic (e.g. alkanes and alkenes) and aromatic (e.g. benzene and naphthalene) hydrocarbons.

For TPH assessment at contaminated sites, relevant properties to consider are water-solubility, polarity, boiling point and evaporation ranges. Aliphatic hydrocarbons are non-water soluble, non-polar, have lower boiling points and are more prone to evaporation compared to the aromatic hydrocarbons. At a typical petroleum contaminated site, substances such as fuel additives (such as oxygenates), naturally occurring hydrocarbon components, metabolites from degraded substances and individual petroleum constituents (such as BTEX).

TPHs are made up of various constituents with similar or different carbon atoms. This means that there is the challenge of analytically separating TPH constituents in a risk assessment context since hydrocarbon constituents from a specific range of carbon atoms could be a challenge, especially if they are diesel, jet fuel or petroleum. With this knowledge, one can conclude that bulk TPH analysis, though a good screening method, is not a suitable method for TPH risk evaluation. A good way of summarizing this is in shown below.

Chromatograms of samples from the same analysis. Sample 1, 2 and 3 are Gasoline, Diesel fuel and South Louisiana Crude respectively. The analysis method used was EPA method 8015. (Image courtesy of ITRC, 2019)

The same concentration of TPHs in
different areas of a site might be composed of different products; which in
turn, may present different risks to the ecological environment. Therefore, we
can safely say that TPH is:

  • a
    complex mixture with an approximate quantitative value representing the amount
    of petroleum mixture in the sample matrix
  • is
    defined by the analytical measure used to measure it, which varies from  one laboratory to another.
  • is
    either made up of anthropogenic products freshly released into the environment
    (or weathered) or natural products from ecological activities
  • not
    totally of petroleum origin and may simply be detected by the analytical method
    used.

This definition then enhances the
challenges faced with TPH risk assessing such as dealing with continual changes
in TPH composition due to weathering brought on by site-specific conditions,
trying to analyze for hundreds of individual constituents in the mixture and
having limited data on the toxicological effects of the various constituents.

To overcome the challenge of drawing erroneous conclusions about a contaminated site therefore, the project manager should not focus only on TPH individual constituents when making remedial decisions, which mostly degrade before the toxic fractions do, but should collect samples for both fractions and individual constituents. A detailed Conceptual Site Model (CSM) is suggested as a good guide in assessing TPH risks as it shows where the the remediation focus should be, away from human exposure routes; and periodic revision of this CSM will assist in documenting contaminant plume changes and identifying areas with residual contamination.

TPH ANALYSES

Due to the complexity of TPH mixtures,
analytical methods should be selected based on the data quality objective,
application of the results (whether to delineate a contaminated area or to
conduct a risk assessment), the regulatory requirements, the petroleum type and
the media/matrix being tested. As long as the method is fit for its purpose and
cost effective. TPH mixtures require separation and most laboratories use GC as
a preferred method as it separates I the gas phase based on its volatility.
Since it is difficult to evaluate risk for a TPH mixture, most methods suggest
separation into fractions. Guidelines are usually provided on what methods suit
a purpose best by governmental records but if such records are inaccessible,
getting information from seasoned chemists is the best option. 

Prior to TPH mixture separation,
removing method interferences, such as non-petroleum hydrocarbons, is ideal for
more accurate results. US EPA method 3630C describes the use of silica gel to
remove polar, non-PH and naturally occurring compounds from the analysis. This
gel cleanup leaves only the hydrocarbons in the sample which is the analyzed
for bulk TPH. The silica gel used is a finer version  of the common ones found in clothing
accessories and using it in a gel column setup is most effective at removing
non-hydrocarbons. Quality controls using laboratory surrogates is also advised.
Cleaning up prior to bulk TPH analysis is ideal in determining the extent of
hydrocarbon impact, biodegradation locations and knowing where to focus
remediation activities.

Silica gel can also be used to fractionate samples into aliphatic and aromatic fractions; and the technique can be applied to all matrices. However, alternative fractionation method is suggested for volatile samples. The eluted fractions are then run on the GC instrument  to obtain information on the equivalent carbon ranges. It is good to note that fractionation is more expensive compared to bulk TPH analyses as it provides a more detailed information, removes non-hydrocarbons from the analyses and raises reporting limits.

Chromatograms provide information such as sample components, presence of non-hydrocarbons, presence of solvents, presence of non-dissolved hydrocarbons, poor integration and weathering. They can also be used to compare samples with interferents as shown below:

Chromatograms from the same sample collected at different times showing an unweathered sample (above with red asterisk) and weathered samples (below). (Image courtesy of ITRC, 2019)

Chromatograms from the same TPHd contaminated groundwater sample comparing analysis before silica gel cleanup (left image, TPHd=2.3mg/l)) and after silica gel cleanup (right image, TPHd = <0.05 mg/l). The hump centered around the C19 internal standards and the non-uniform peaks indicate the presence of non-hydrocarbons, as confirmed after silica gel cleanup. (Image courtesy of ITRC, 2019)

Methods used to analyze TPH in
contaminated samples can yield different results when compared with one another,
as well as the presence of non-petroleum hydrocarbons being quantified as TPHs.  To overcome this, use field methods such as
observed plume delineation during excavation, PID analysis of bag headspaces
and oil-in-soil analysis for semi-volatiles, as well as the CSM to get valuable
information, before using laboratory methods and chromatograms to confirm
conclusions made from the field observations.

ENVIRONMENTAL FATE OF TPH

Determining the environmental fate of
TPH is critical to understand how the vapor composition and dissolved plumes
differ from the source zone  due to partitioning
and transformation processes. TPHs partition to vapor as well as water. When
partitioning to vapor, the smaller hydrocarbons are more volatile and therefore
dominate the vapor composition. A more complex process is involved when TPH is
partitioning to water because the smaller hydrocarbons are more soluble, based
on their molecular structure. Aliphatic hydrocarbons are less soluble compared
to the aromatics which are likely to dominate the soil water fractions. TPH
weathering on the other hand, contributes exceedingly to TPH mass reduction in
the environment may be due to aerobic or anaerobic biodegradation processes in
the soil or photooxidation processes; to generate petroleum metabolites which
may be further degraded. Petroleum metabolites produced have oxygen atoms in
their molecules, making them polar in nature and partition preferentially in
water. These metabolites are measured primarily via TPH analysis without silica
gel cleanup, and are identified using chromatogram patterns, understanding the
solubility of the parent compound and using CSMs maps. most TPH components
found in groundwater are metabolites and their toxicity characteristics are
usually different from their parent compounds.

The use of TPH fraction approach with
fractionation methods is considered best for assessing TPH risks because it
provides accurate hydrocarbon quantitation along with the toxicity values as
well as the chemical or physical parameters involved. To determine the
fractionation composition in a TPH, the fuel composition and the weathering
conditions are determined.

For example, Non-Aqueous Phase Liquid (NAPL) undergoing weathering process overtime will first have the mobile hydrocarbons partition out while at the same time, further NAPL depletion will occur with the generation of metabolites  by continual biodegradation. There is the migration of vapor plumes to thin zones around the NAPL as well as heavily impacted media due to aerobic degradation in the unsaturated zone. Contaminated ground water could be made up of mostly small aromatic hydrocarbon fractions, some small aliphatic hydrocarbon fractions as well as medium aromatic hydrocarbon fractions.

Along a groundwater flow path, a differential fate affects the TPH composition which in turn affects the exposure.

Fate of TPH composition in Groundwater. (Image courtesy of ITRC, 2019)

TPH
 composition changes along the path of
flow  could be due to:

  • – differential transport and sorption of individual hydrocarbons,
  • – different susceptibilities of hydrocarbons to biodegradation and
  • – different redox zones along the path of flow.

On the other hand, bulk TPH composition show highest hydrocarbon concentrations near the surface and diminish downwards along the gradient while the metabolites generated via biodegradation, increase in concentrations downgradient of the source area and highest parts of the dissolved hydrocarbon plume. Over time, metabolite concentrations may increase near source, shifting the apex of the triangle to the right.

ASSESSING HUMAN AND ECOLOGICAL RISK
FROM TPH

TPH risk assessment is done in three
tiers where the first tier is a screening-level assessment; and the  site-specific assessment comprises the second
and third tiers.

Screening-level assessment involves
preliminary CSM development (source characterization and initial exposure
pathway assessment) and initial data review (regulatory requirement evaluation,
existing TPH data review).

Site-specific assessment involves more
detailed assessment which includes the identification of data gaps from data
obtained from screening-level assessment and collecting additional field data
such as bulk TPH  data and chromatograms,
indicator compounds and fractions, and CSM updates.

An environmental risk assessment may
not be necessary if viable habitats are absent at the TPH contaminated site, if
no contamination is found below the root zones and below the burrowing zones of
ecological receptors; and there is no potential release of the contaminant to
nearby viable ecological habitats. However, risk assessment is necessary if it
is a regulatory requirement, if the screening level values are available and if
the available levels are appropriate for the site conditions or the type of
release.

Site-specific assessment, therefore,
is required when screening levels are lacking or exceeded; and at complex sites
with multiple media, sensitive habitats and receptors. Such an assessment  should focus on direct exposure,  contaminant bioaccumulation and toxicity
assessment which evaluates the ecological risk, physical and chemical toxicity
effects and the metabolites produced.

STAKEHOLDER CONSIDERATIONS

The stakeholders involved are affected
property owners or communities with regard to the risks that are specific to
petroleum contamination as measured by TPH. Communicating with them requires sensitivity
and a timely approach  in order to help
them understand facts and clear their confusions and concerns about TPH risk
assessment. This could be done through factsheets, posters, outreach meetings,
websites and internet links on TPH information. There should be public
notification prior to sampling as well as the provision of post sampling TPH
data results with appropriate explanations.  Technical information and public health issues
should be translated and communicated in a format that is easily understood by
the general public.

Similar sensitivity should be shown to
other TPH assessment impacts to public property, including property value,
access, and private property rights. A major concern is the fear of property
devaluation as a result of possible residual TPH and a Monitored Natural
Attenuation (MNA) remedy. The fears can be effectively addressed by explaining
why the selected remedy is protective and effective (especially MNA), describing
how all activities are done with agency oversight (that is local organizations
and government agencies); and individual property owners concerns  should also be addressed.

Overall, a successful TPH risk
evaluation project requires an appropriate technical approach, careful review
of analytical methods chosen, a complete CSM with regular updates during
remediation as well as stakeholders’ engagement.

Hamilton Member of Parliament calls for RCMP investigation of illegal soil dumping

A Canadian Member of Parliament, David Sweet, wants the Royal Canadian Mounted Police (RCMP) to investigate alleged illegal soil dumping in Flamborough, near the City of Hamilton.

According to Mr. Sweet, a Conservative MP representing the federal riding of Flamborough-Glanbrook, the matter of illegal dumping requires the immediate attention of the federal government and the RCMP.

David Sweet, MP

In a open letter to federal Minister of Public Safety, Ralph Goodale, and the federal Minister of Organized Crime Reduction, Bill Blair, the Flamborough-Glanbrook MPP claims that there is illegal dumping of soil at a garden supply store in his riding because of “alleged links to organized crime and related illegal activities.”

“This matter requires the immediate attention of the government and the RCMP,” he said in a letter to Bill Blair, federal minister of organized crime reduction, and Ralph Goodale, public safety minister. 

The garden supply store has faced numerous environmental fines over the years. This includes in 2008, when it was fined $50,000 after it pleaded guilty to violations under the Ontario Environmental Protection Act and the Ontario Water Resources Act. The company was violating several conditions, including not monitoring its wells. 

Recent scrutiny, however, has focused on the dumping of excess soil there. Neighbours say trucks arrive day and night and dump dirt there. Hamilton authorities say there’s an ongoing issue across the city with trucks dumping untested soil from GTHA developments on rural properties. 

Proposed Ontario Rules on Excess Soil

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.

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).

From an environmental perspective, the proposal’s call for some regulatory key points are quite 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). 

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

Quebec’s Action on Illegal Soil Dumping

The Quebec Government recently announcement that it will adopt the regulation that will include the implementation of a system in which the movement of contaminated soil will be tracked in real time. Under the tracking system, the site owner, project manager, regulator, carrier, and receiving site, and other stakeholders will be able to know where contaminated soil is being shipped from, where it’s going, its quantity and what routes will be used to transport it.

Contaminated soil will be tracked in real time, starting from its excavation, through a global positioning system. The system, Traces Québec, is already in place in Montreal as part of a pilot project.

The Quebec government also intends to increase he number of inspections on receiving sites. Furthermore, fines will be increased for those taking part in illegal dumping — from $350 to $3 million depending on the gravity of the offence, the type of soil and if they are repeat offenders, among other criteria.

What are the pros and cons of simulators for radiation safety training?

Written by Steven Pike, Argon Electronics

Electronic radiation simulators provide trainees with realistic first-hand experience of handling detector equipment that is identical to that which they will use in the field.

But while the use of simulator detectors can offer significant advantages for both student and instructor, as with any form of training method there may be some compromises.

In this blog post we explore some of the pros and the cons of radiation safety training using simulator detectors.

The Pros

Practicality

Ionizing radiation is a powerful, invisible force – which can make creating realistic scenarios a challenge.

By incorporating the use of simulator detectors into training exercises students have the opportunity to both understand and ‘trust’ the values displayed on their instruments.

In doing so they can also develop an understanding of the relationship between the measurements on their survey meter and their own personal dose readings as well as the effects of time, distance and shielding.

Safety

Safe and environmentally friendly radiation training systems can be used in a variety of scenarios – whether indoors, outdoors in confined areas or in public spaces.

With simulators incurring zero safety risk there are no Health & Safety restrictions – and the administrative burden for instructors is vastly reduced.

Immersion

Simulator detectors offer the opportunity for a truly authentic and immersive training experience.

Scenarios can be planned to replicate all the crucial elements of real-life incidents, which in turn exposes trainees to the psychological challenges they may well encounter in high-stress incidents.

Repeatability

With the use of simulators, radiation training exercises can be quickly and easily set up – and repeated as many times as required.

Outcomes

Powerful after action review (AAR) ensures that trainees have followed clearly set out procedures and that they understand when mistakes have been made.

Efficiency

Using simulators can provide some significant time-saving advantages for training exercises.

The costly and time-consuming administrative effort normally associated with the transport, deployment and safe handling of radionuclides is completely removed – and the need to secure specialist facilities where ionizing radiation sources is no longer an issue.

The cons

With any form of training, some compromises will inevitably have to be accepted. The key, however, is to find the happy medium between the optimum training outcome and what is practical and achievable.

Dynamic ranges

The dynamic ranges associated with radiation readings are extremely large, which can contribute to challenges in implementing simulations.

Instructor intensiveness

Simulation training can also be very instructor-intensive – with the trainer finding that too much of their attention is focused on creating the “effect” for their student and not enough on observing the student’s actions.

In these cases, alternative techniques which involve the temporary placement of a means to simulate the presence of radioactivity may be more practical – selection of the ideal simulation equipment is essential.

Shielding

It is the simulation of the effects of shielding where there is the potential for the greatest compromise.

The reality is that safe alternatives won’t be subjected to the same degree of attenuation (or reduction in force) as actual ionizing radiation.

But new technology now means that shielding can be represented to a realistic enough level to enable students to appreciate its importance for protection.

Instructors will of course need to clarify the differences, where appropriate, for the lesson being delivered – and these are likely to vary depending upon the operational responsibilities of the trainees.

While training with simulator detectors has both advantages and limitations, there is no doubt that it is an effective method of ensuring successful training outcomes while at the same time maintaining the safety of student and instructor.


About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators. He is interested in liaising with CBRN professionals and detector manufacturers to develop training simulators as well as CBRN trainers and exercise planners to enhance their capability and improve the quality of CBRN and Hazmat training.

Using Block Chain Technology to Track Hazardous Materials

There is increasing focus on the utilization of Blockchain technology which you can learn more about at websites similar to cryptoevent.io if you’re interested in trading the currency to track hazardous materials and hazardous waste. Blockchain technology allows for a system where records can be stored, facts can be verified by anyone, and security is guaranteed. The software that would power such a system is called a “blockchain”.

Blockchains store information across a network of computers making them both decentralized and distributed. This means no central company or person owns the system and that everyone can use it and help run it. This makes it extremely difficult for any one person to take down the network or corrupt it. This is why it’s so beneficial for so many industries to use blockchain software, such as blockchain technology in real estate.

In essence, a blockchain is a super-secure digital ledger, where transactions records are kept chronologically and publicly. According to experts, the technology would also make it easier to track shipments of hazardous materials and waste. It could even help with regulatory compliance.


The management of hazardous materials/waste through blockchain would result in more open and coordinated movement among generators, transporters, users, and and recyclers. It would also enable the government to more efficiently and openly regulate hazardous materials movement and hazardous waste management. The imbalance between the organized and unorganized sectors would shrink and lead to increased transparency throughout the process.

Tracking Waste Using Blockchain Technology

The technology that powers cryptocurrencies like bitcoin are slowly making way into hazardous materials transportation and hazardous waste management.

As reported in Hacker Noon, Jody Cleworth, the CEO of Marine Transport International said, “The shipping of recovered materials is necessarily heavily regulated, and we’ve had a real impact in simplifying the process while remaining compliant.” Marine Transport International is a New Jersey-based freight forwarder. The company just completed a successful blockchain pilot. This pilot created a common tracking system linking up recycling suppliers, port operators, and ocean carriers.

Phil Rudoni, Chief Tech Officer at Rubicon said that “A big issue the waste industry faces is the lack of accountability for the end destination of recycled material. Rubicon is an Atlanta-based tech startup that provides cloud-based recycling and waste services.

It has always been a challenge to track hazardous materials and waste. With blockchain, it is believed that it would be much easier. It wouldn’t be so difficult to design a system where hazardous materials could be tagged with scannable Quick Response or QR-Codes (two-dimensional barcode) and then tracked at each step of the recycling supply chain. The tracking could be done by the generator, regulator, receiver, the general public, and any other interested person.

Examples of blockchain technology in waste management

The Several waste initiatives have seen the potential of incorporating blockchain technology. One if such initiative is the Plastic Bank, a global recycling venture founded in Vancouver by David Katz and Shaun Frankson. Its main aim is to reduce plastic waste in developing countries like Haiti, Peru, Colombia, and the Philippines. It has plans to extend it’s territory this year.

The Plastic Bank initiative pays people who bring plastic rubbish to bank recycling centers. One payment option is the use of blockchain-secured digital tokens. The tokens can be used to purchase things like food or phone-charging units in any store using the Plastic Bank app.

The plastic brought into the Plastic Bank is bought by companies and recycled into new consumer products. This system is more attractive because blockchain’s transparency means all parties can see and monitor where their effort and/or investment goes.

How the SCC Decision in Redwater Case could Change the Role of Environmental Orders in Ontario Insolvency Proceedings

by Erin D Farrell, Jessica Bioly and Haddon Murray, Gowlings

1. Introduction

The potential conflict between federal insolvency law and provincial environmental law that came to a head in Orphan Well Association v Grant Thornton Ltd (“Redwater“) was settled by the Supreme Court of Canada (the “SCC“) on January 31, 2019 in a split 5-2 decision.[1] Specifically, Redwater addresses whether environmental orders are binding on an insolvent estate, or if a trustee can disclaim unprofitable lands subject to the environmental orders, treating the regulator as an unsecured creditor.

In a contested decision, the SCC considered a test it had previously established to determine whether a regulatory order was enforceable against the debtor’s estate as opposed to merely constituting a provable claim in the bankruptcy (the “Abitibi  Test“, described below). If a regulatory order was found to meet theAbitibi Test and therefore found to be a claim provable in bankruptcy, then it would be stayed and treated as any other unsecured debt. The SCC in Redwater determined that the Abitibi Test had been interpreted too broadly by the lower courts, therefore narrowing the circumstances where such an order would be reduced to a claim provable in bankruptcy. The majority of the SCC in Redwater significantly expanded the circumstances in which costly end-of-life environmental or other regulatory orders will effectively trump secured and other creditors in an insolvency. The SCC further held that the regulator should not be characterized as acting as a “creditor” in this case where the regulator sought to enforce an insolvent company’s end of life obligations and consequently does not have a claim provable in bankruptcy.

In arriving at its decision, the SCC held that there was no conflict between the applicable provisions of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA“) [2] and Alberta’s environmental regulatory statutes that would trigger the doctrine of federal paramountcy. The SCC overturned the decisions of both the Alberta Court of Queen’s Bench[3] and the majority of the Alberta Court of Appeal,[4] both of which held that there was a conflict between the applicable federal and provincial acts that found that provincial environmental law, to the extent that it created a practical super‑priority in favour of the regulator, to be inoperative.

The Attorney General of Ontario intervened in the case and supported the Alberta regulator’s position that its environmental orders should continue to operate in bankruptcy. Although Ontario’s submissions focused on its provincial oil and gas industry, all corporations that could be subject to regulatory orders, including owners and operators of contaminated lands, may be affected.

The decision will have serious consequences for creditors, many of whom are innocent suppliers and investors, but will be left paying for environmental remediation.

2. Background

Redwater Energy Corporation (“REC“) was an oil and gas company operating in Alberta. The Alberta oil and gas industry is regulated by the Alberta Energy Regulator (“AER“). The AER regulates the oil and gas industry by issuing licenses for each oil and gas well or pipeline, and then by imposing on each licensee conditions that control all aspects of the operation, disposition and eventual shutting-in of the licensed property.[5] It issues licenses, approvals, permits, orders, decisions and directions pursuant to authority derived from statutes such as the Oil and Gas Conservation Act (“OGCA“) and the Pipeline Act (“PA“).[6]

In Alberta non-producing wells do not need to be “abandoned”[7] (plugged) and reclaimed[8] (remediated) within any set timeframe.[9] The many non-producing wells often sit for years or even decades.[10] They are also commonly transferred to subsequent licensees, who may or may not be sufficiently capitalized to perform their end‑of‑life obligations. Like many oil and gas companies ceasing operations, REC held licenses for both non-producing oil and gas wells.

In the Redwater case, REC became insolvent and was put into receivership by its senior secured creditor, ATB Financial. Upon learning of REC’s receivership, the AER took view that:

  1. it was not a creditor;
  2. environmental obligations were not “claims provable in bankruptcy”, and that accordingly the environmental obligations of REC were unaffected by the insolvency proceedings;
  3. the receiver was legally obliged to discharge REC’s environmental obligations “prior to distributing any funds . . . to creditors, secured or otherwise”; and
  4. it would not approve any transfers of REC’s (valuable) oil and gas assets unless it was satisfied that both the transferor and transferee would be in a position to fulfill all environmental obligations and the proceeds of sale were paid to the AER as security for the end‑of‑life obligations.

At the time of the receivership, REC had both producing and non-producing wells. The receiver concluded that the cost of the end-of-life obligations for the non-producing wells would likely exceed the sale proceeds of the producing wells. As such, the receiver renounced or disclaimed the non-producing wells pursuant to s. 14.06(4) of the BIA, taking possession and control of only the productive wells. Nonetheless, the AER issued orders requiring REC to abandon and reclaim, “for environmental and public safety reasons”, the non-producing assets that the receiver had renounced.[11] Subsequently, REC was assigned to bankruptcy and the receiver was appointed as the bankruptcy trustee. The trustee took the position that, as a result of the disclaimer, it had no obligation to comply with the AER’s orders in relation to the renounced wells and attempted to maximize recovery for creditors through sale of the profitable wells.

The AER, along with the Orphan Well Association, a non-profit organization operating under authority delegated by the AER,[12] sought a declaration that the trustee’s disclaimer was void, and an order compelling compliance by the trustee with the abandonment and remediation orders issued by the AER. The AER’s position was, in essence, that the environmental orders were regulatory in nature and continued to bind the trustee during the bankruptcy notwithstanding the consequences this may have for the bankrupt’s creditors. The trustee brought a cross-application for approval of the sale of assets, and a ruling on the constitutionality of the AER’s position.

The main constitutional issue was whether the AER’s abandonment orders and certain provisions of Alberta’s applicable environmental legislation conflicted with the federal BIA – which would result in certain provisions of the provincial environmental legislation being held in abeyance and the BIA overriding.

In order to answer this question, the SCC considered the following issues:

  1. whether disclaiming property under s. 14.06(4)(b)(ii) of the BIA has the effect of removing the obligation to comply with the order from the bankrupt estate, or simply eliminating the trustee’s personal liability in respect of the order; and
  2. whether environmental orders are provable claims in an insolvency proceeding. If they are, then the environmental order is treated like any other claim in the proceeding – the order is stayed and it generally ranks as an unsecured claim (except for certain statutory security interests). The alternative is that the environmental order is considered as a regulatory obligation that continues to be enforceable during the insolvency proceeding and consequently, effectively has priority over all other claims and, in the case of a restructuring, continues after the restructuring.[13]

The trustee in Redwater argued that (a) while the estate would continue to be liable for the end‑of‑life obligations associated with disclaimed property, the trustee would not be obliged to perform them, and (b) the environmental orders were properly characterized as provable claims and the regulator was attempting to defeat the priority scheme set out in the BIA. For both of these reasons the trustee argued that the provincial statutes that gave rise to the environmental orders conflicted with the federal BIA, and accordingly the federal law was paramount.

3. The Abitibi Test

The characterization of environmental obligations as provable claims has previously been considered by the Supreme Court of Canada. In Newfoundland and Labrador v. AbitibiBowater Inc., (“AbitibiBowater“)the SCC considered whether certain orders issued under Newfoundland’s Environmental Protection Actwere “claims” for the purpose of the CCAA.[14] The SCC established a three-part test for whether a regulatory obligation is a provable claim in an insolvency proceeding:[15]

  1. there must be a debt, liability or obligation to a creditor,
  2. it must be incurred before the debtor’s bankruptcy, and
  3. it must be possible to attach a monetary value to the debt, liability or obligation.

Meeting the test would mean that a regulatory order would be stayed and treated the same as other unsecured debts.

The Abitibi Test has been applied by the Ontario Court of Appeal in Nortel Networks Corp. (Re),[16](Nortel) and Northstar Aerospace, Inc. (Re) (“Northstar“)[17]. Both cases concerned clean-up orders for legacy contaminated sites owned by insolvent corporations.

In Nortel, the Ministry of the Environment (“Ministry“)[18] issued remediation orders after the corporation’s CCAA filing. These orders dealt with a number of properties and would have required certain of the debtor companies (referred to collectively as “Nortel“) to expend approximately $18 million to remediate the properties. Nortel brought a motion before the CCAA judge seeking a declaration that the Ministry orders were monetary in nature and thus, were stayed by the CCAA proceedings, meaning it could cease complying with the orders. It also sought a declaration that the Ministry’s claims had to be dealt with as part of the CCAA. The Ontario Court of Appeal found that the key issue was the third branch of the Abitibi Test; specifically, the Court of Appeal held that in order for a monetary value to be attached to the debt, it had to be sufficiently certain that the Ministry would perform the remediation work itself and then have a claim for indemnification against Nortel. With the exception of one property, the Court of Appeal found it was not sufficiently certain the Ministry would perform the remediation itself and thus, the claim was not stayed and the regulatory orders had to be complied with, depleting assets from the estate that would otherwise be paid to Nortel’s creditors.

By contrast, in Northstar, the Ontario Court of Appeal found it was sufficiently certain that the Ministry would perform the remediation work itself, given that the Ministry had already taken steps towards conducting the remediation itself, there was no funding available to the debtor or the trustee to do remediation work, and there were no other parties who could be required to perform the work. Consequently, the Ministry’s order was found to be a provable claim that was stayed by the insolvency proceeding – to be determined and paid in the same manner as all other creditors of the estate. Subsequently, the Ministry chose to pursue Northstar’s directors and officers personally.

4. Judicial History

Court of Queen’s Bench of Alberta

In his May 19, 2016 decision (the “Chambers Decision“), Chief Justice Wittmann of the Alberta Court Queen’s Bench found that there was a conflict between the provincial and federal laws. Specifically, he found that requiring a trustee to comply with abandonment orders issued pursuant to provincial legislation in relation to renounced licensed assets triggered the doctrine of federal paramountcy as there was an operational conflict between s. 14.06(4) of BIA and the provincial law. The obligation to comply with the AER orders required payment of, or the posting of security for, the abandonment costs to the AER in priority to all others, including secured creditors. This frustrated the primary purposes of the BIA, as its distribution scheme would be upset.

Chief Justice Wittman stated that it was conceded by the OWA and AER that the first and second branches of the Abitibi Test were met.[19] However, the AER argued that the fact that there were monetary consequences to its orders was not determinative of the third branch of the test.[20] Chief Justice Wittman disagreed and found that there was no funding for the receiver to carry out the work, the receiver was not in possession of the renounced properties and therefore could not carry out the work, and that there were no other parties who could be required to carry out the work. Further, he found either the AER or OWA would probably carry out the work, and therefore that, although not expressed in monetary terms, the AER orders were “intrinsically financial,”[21] and sufficiently certain.[22] If the regulator’s actions indicate that, in substance, it is asserting a provable claim within the meaning of federal legislation, then that claim can be subjected to the insolvency process.[23]

Alberta Court of Appeal

The majority of the Court of Appeal (consisting of the Honourable Mr. Justice Frans Slatter and the Honourable Madam Justice Frederica Schutz) affirmed the Chambers Decision. In considering the constitutional issues, the Alberta Court of Appeal stated that under the principle of cooperative federalism, the court will first attempt to interpret and apply the two provisions in harmony with each other, and only if that fails will paramountcy be invoked.[24] However, the majority found that the regulatory orders of the AER were in operational conflict with section 14.06 of the BIA and that the underlying sections of the OGCA and PA frustrated the federal purpose of the BIA in managing the winding up of insolvent corporations.

The majority held that a trustee is entitled to abandon or renounce oil and gas assets encumbered with environmental obligations and that the AER’s demand for security for remediation diverted value from the bankrupt estate. This was reason enough to classify the claims of the AER as financial in nature, thereby making it a “creditor” whose claims are subject to the priorities prescribed by the BIA.

As it did for the Chambers hearing, AER conceded that the first two branches of the Abitibi Test were met: an obligation existed to the AER as a creditor, and the obligation had arisen prior to the conclusion of the insolvency.[25] Therefore the only real issue was the third branch.

In finding that the regulator’s orders constituted a claim provable in bankruptcy, the majority applied the Abitibi Test and found that the effect of the abandonment orders was to elevate the priority of environmental claims and upset “the priorities of the BIA.”

The majority found that AER’s claims met the test for a provable claim in s. 14.06 of the BIA and did not have higher or special “super priority” over the claims of secured creditors. Under the proper interpretation of the BIA, the AER could not insist that substantial parts of the bankrupt estate be set aside in satisfaction of the environmental claims in super priority over the claims of secured creditors.

In her dissent, The Honourable Madam Justice Sheilah Martin, prior to her elevation to the Supreme Court of Canada, disagreed with the majority, found no conflict between the legislation, and noted that the environment was an area that called for “co-operative federalism.”[26] Justice Martin noted that that the “cradle to grave” approach to regulation now stopped at “insolvency,” moving the “polluter pays” policy to a “third party pays” system. Justice Martin found that license obligations are public duties, not debts owed to the regulator. Abandonment and reclamation are necessary for public health and safety, reducing the environmental impact of drilling activities, and ensuring private landowners are not left with unused and potentially unsafe well sites on their land.

Ultimately, Justice Martin held that there was no conflict between the legislative schemes and that both schemes could continue to co-exist. In examining the third branch of the Abitibi Test, Justice Martin distinguished the nature of the remedial work being performed in Redwater from AbitibiBowaterNorteland Northstar:[27]

…. During the course of its operations, various contaminants spilled on the lands owned by Abitibi and the government issued orders and tried to have those lands transferred to the government through legislation. As the Supreme Court noted, when such conditions arise, “regulatory bodies sometimes have to perform remediation work”. The decisions of the Ontario Court of Appeal in Nortel and Northstar Aerospace Inc., Re, 2013 ONCA 600, 234 A.C.W.S. (3d) 642 (Ont. C.A.), both decided after Abitibi, also dealt with the same type of industrial contamination on land owned by the debtors, and the same kind of clean-up order. Contrast that with the licensing and regulatory regime here. The abandonment obligations are not an unknown or unexpected event; all parties involved know these obligations will arise at the end of the life of the well.

Given the foregoing, Justice Martin found that the third branch of the Abitibi Test had not been made out as there was insufficient certainty that remediation work would be done or that a claim for reimbursement would be made.

In significant contrast to the majority justices and Chief Justice Wittman in the Chambers Decisions, Justice Martin also held that the first branch of the Abitibi Test had also not been met because the regulatory body was not a creditor of the insolvent company.[28] Quoting Laycraft CJA in Northern Badger,[29] Justice Martin held that the cost of abandoning licensed wells “was one of the expenses, inherent in the nature of the properties themselves, taken over for management by the Receiver,” and that the cost was not owed to the regulator, or to the province.

5. The Supreme Court of Canada Decision

The SCC decision was released January 31, 2019. The SCC, split 5:2 in favour of granting the regulator’s appeal. The intervenors supporting the AER and OWA in its arguments included Greenpeace, Ecojustice and the Attorney General of Ontario, among others. The majority decision, penned by Chief Justice Wagner, found:

  • the regulator’s use of its statutory powers did not create a conflict with the BIA so as to trigger the doctrine of federal paramountcy;
  • section 14.06(4) of the BIA permits a trustee to avoid any personal liability in respect of environmental obligations for a property it has disclaimed, however those obligations remain a liability of the insolvent estate; and
  • not all environmental obligations enforced by a regulator will be claims provable in bankruptcy. Further, the regulator’s orders in this case were not claims provable in bankruptcy, and the priority scheme in the BIA was not upended. Thus, no conflict was caused by the trustee’s status as a licensee under Alberta legislation. Alberta’s regulatory regime can coexist with and apply alongside the BIA.

The majority of the SCC also reframed its own Abitibi Test to determine whether a regulator’s action amounts to a claim provable in bankruptcy with respect to the first and third branches of the test.

The first branch of the test requires that there must be a debt, liability or obligation to a “creditor”. The SCC agreed with the regulator and Martin JA and held that the Court of Queen’s Bench and Alberta Court of Appeal (as well as the Ontario Court of Appeal in Nortel) had incorrectly, and overly broadly, interpreted the circumstances in which a regulator will be considered a creditor. The majority rejected the concessions made by the regulator on the creditor issue at the lower courts, noting that “concessions of law are not binding.” In Nortel and Northstar the courts applied the Abitibi Test to find that the first branch of the test was always made out when a regulator exercises its statutory enforcement powers against a debtor. The SCC found that where the regulator acts in a bona fide regulatory capacity in the public interest and for the public good, and is not seeking a pecuniary benefit, it is acting in a regulatory capacity rather than as a creditor. Echoing Justice Martin’s statement, the SCC held that where the public is the beneficiary of the enforcement action (and not the government’s coffers as in AbitibiBowater), the first branch of the test will not be made out. Rather, in Redwater the majority found that the orders were made in the public interest and for the public good. Therefore the regulator was not a creditor of REC as the public was the beneficiary of the environmental obligations. The majority rejected the trustee’s argument that the first “creditor” branch of the Abitibi Test would be satisfied whenever a regulator exercises its enforcement powers against a debtor. The majority instead agreed with the submissions of Ontario that the creditor part of the test would be meaningless if it were not possible for the test to turn on whether a regulator is a creditor of the bankrupt.[30]

The Supreme Court went on to discuss the third branch of the Abitibi Test, or the “sufficiently certain” branch. The majority noted that the regulatory end-of-life obligations did not directly require REC to make a payment to the regulator, but rather obliged REC to “do something”.[31] The majority rejected the characterization of the orders as “intrinsically financial” applied by the majority of the Alberta Court of Appeal, finding that this application would be too broad. This would result in a provable claim being established even where the existence of a monetary claim in bankruptcy was merely speculative.[32] The third branch of the test was the focus of the courts analysis in Nortel and Northstar. The Supreme Court confirmed the approach of the Ontario Court of Appeal in Nortel, finding that ongoing environmental remediation obligations may be reduced to monetary claims only where: (i) the regulator has performed the remediation work and advanced a claim for reimbursement, or (ii) it is sufficiently certain that the province will do the work and seek reimbursement. The Supreme Court stated that Northstar could be distinguished, because in that case the Ministry had already stepped in to conduct the remediation.

In a detailed dissent that is sure to be cited in future cases, Justices Moldaver and Côté found that both an operational conflict and frustration of purpose existed between the provincial legislation and the federal BIA, and thus invoked the doctrine of federal paramountcy. Consistent with the lower court decisions, the dissenting judges found that Alberta’s statutory regime does not recognize the disclaimers by trustees of assets as lawful by virtue of the fact that receivers and trustees are treated by regulators as licensees who cannot disclaim assets. The minority was of the view that, because of the unavoidable conflict the provincial legislation should be held inoperative to the extent that it does not recognize the legal effect of the trustee’s disclaimers. The minority also applied the Abitibi Test and found that, as in the AbitibiBowatercase itself, the regulator was a creditor and “most environmental regulatory bodies can be creditors…and that government entities cannot systematically evade the priority requirements of federal bankruptcy legislation under the guise of enforcing public duties.”[33]

6. Implications for Ontario

Insolvency Proceedings

The Redwater decision has significantly expanded the circumstances in which an environmental order, or any regulatory enforcement action for that matter, will not be provable in an insolvency proceeding. The decision will impact companies with environment liabilities in the following ways:

  • There may be a chilling effect on the availability of financing in industries where environmental liabilities are likely, because secured creditors will take a backseat to environmental liabilities. Lenders may expand environmental due diligence requirements and increasingly demand stricter covenants from businesses regarding the state of environmental liabilities. We may also see a decrease in the number of lenders offering debtor-in-possession loans to fund the insolvency proceedings and ongoing operations of an insolvent company. While these loans were traditionally provided a super-priority charge against the assets of the debtor, it is possible that such a charge would also take a backseat to environmental liabilities.
  • Professionals may begin to demand indemnities for the payment of their fees from creditors before agreeing to insolvency mandates. While trustees are protected from personal liability under subsections 14.06(2) and (4) of the BIA, where environmental liabilities exceed the value of the estate, it is possible, although not clear, that insolvency professionals might not be paid.
  • It may become more challenging to retain key employees during the insolvency period. When a company enters insolvency proceedings it is often important to keep certain key employees working through the insolvency period in order to maximize value and ensure the debtor can be sold as a going concern. In order to retain these employees, it is common in restructuring proceedings (and occasionally in receiverships) to obtain a super-priority charge for a bonus payment plan for key employees (referred to as a KERP) provided they continue to work through the insolvency period. As with the above charges, the ability to retain key employees is brought into question by the possibility that all those funds will be spent complying with environmental orders.

Industries with the Potential for Environmental Liabilities

Anxiety among lenders in Alberta’s oil and gas industry, where the number of non-producing wells is rapidly escalating, could signal rapid market decline. If lenders, given the uncertainty, are unwilling to provide additional credit, many more wells may end up in the orphan system, with fewer industry participants contributing to the fund. Many commentators have noted that as a result of the Redwaterdecision, companies with potential significant environmental liabilities may have difficulty finding new capital or restructuring.

In Ontario, the operator of a well that is no longer producing should plug the well within 12 months after it is taken out of use,[34] and return the well site to its original condition no later than 6 months from the plugging date.[35] There is no such requirement in Alberta, despite proposed legislation. In many industries in Ontario, closure, reclamation and anticipated end-of life remediation obligations are also secured by financial assurance (usually through a letter of credit). For example, mining operations with closure plans or landfills that might require remediation and monitoring upon closure would normally be subject to financial assurance requirements by the regulator. Consequently, even if the business were to become insolvent, the environmental obligations would be secured by financial assurance. In those cases, assuming that the financial assurance numbers accurately capture the risk, lender anxiety should be reduced.  

Contaminated Sites and Brownfield Development

In Ontario, owners and those in management or control (including former owners or those previously in management or control) of an environmentally contaminated or brownfield site, as well as persons who caused or permitted a discharge of a contaminant, may be subject to regulatory orders for both on and off-site work (including investigation, delineation, and in some cases, remediation). The characterization of such environmental orders was litigated in Northstar and Nortel, which involved Ontario properties subject to Ministry orders that were owned or previously owned by insolvent companies.

The outcome of Nortel would likely be the same under the new Redwater decisionThe Supreme Court in Redwater cites the Northstar case in support of the proposition that where the Ministry steps in to conduct remediation, the third branch of the Abitibi Test is made out. However, it is possible that the Supreme Court’s approach to the first branch of the Abitibi Test could mean that in certain circumstances, even where the Ministry has demonstrated that it will conduct the remediation itself, the Ministry is still considered a bona fide regulator and thus, the order would not be a provable claim.

Unless there is legislative change, it is clear that the Redwater decision will have implications on the way that regulatory “clean-up” orders are treated during an insolvency, particularly in cases where the facts fall somewhere between Nortel and Northstar. We expect the Ministry (and other environmental stakeholders) will take the position that, except in unusual circumstances, regulatory orders are not stayed during insolvency and must be complied with before the distribution of the insolvent corporation’s assets to other creditors. Where an insolvent estate does not have significant assets, environmental costs may mean there is nothing left for creditors.

In some cases, the decision may be welcome news to stakeholders such as directors and officers of insolvent companies, other persons who may also be obliged to address the contamination and neighbouring property owners because they will not have to bear the burden of the clean-up. In Northstar,for example, the Ministry pursued the directors and officers personally after the remediation obligations of the company were found to rank alongside the claims of unsecured creditors. For creditors, however, the Redwater decision may reinforce the recent trend in environmental law of displacing polluter pays for “third-party pays”, particularly when that third party has deep pockets.

For corporations that own or operate a number of brownfield properties or have significant historical environmental liability for previous industrial activities, the insolvency calculus may change. Creditors, even secured creditors, are less likely to see full recovery in cases where there is environmental contamination the Ministry wants addressed.

The Redwater decision confirms that the Ministry will not be seen as a creditor where it acts in a regulatory role. However, the Supreme Court’s comments demonstrate that even post-Redwater, if the Ministry steps in to do the work itself, then it becomes a creditor and its order will be relegated to a claim provable in bankruptcy. This leaves the Ministry in a difficult position when requiring clean-up work from a company that may become insolvent. If the risk to human health or the environment is so significant that the Ministry must step in to do the work, the Ministry may prejudice its position in the insolvency. If the Ministry does not take steps to do the work and the corporation becomes insolvent, the estate will have to fund the remediation. This creates a potentially perverse incentive where allowing the risk to remain for the interim ultimately improves the Ministry’s position.

Environmental Receivers

The implications of the Redwater decision will encourage creative solutions to deal with remediation during insolvency proceedings. One such solution is the appointment of an environmental receiver, such as the one used in the Outboard Marine insolvency. In that case, an environmental receiver (an environmental consulting firm) was appointed by the court to manage the fund for remediation and to conduct the Ministry-ordered clean-up during the insolvency process. The receivership order authorized the environmental receiver to implement environmental remediation activities, to retain consultants, to apply for permits, licenses and approvals as may be required, to receive funds from the disbursement receiver, and to disburse funds to pay approved environmental remediation costs. There may be other situations where it would be “just or convenient”[36] to appoint an environmental receiver to address irreparable harm or imminent danger to health, safety, private and public property, wildlife, natural resources and compliance with environmental laws caused by ongoing and historical contamination of source sites.[37]

Appointing an environmental receiver, along with a regular disbursement receiver, to manage remediation in tandem with winding up may also help to balance environmental obligations and creditors. Such a creative solution may only be appropriate when sufficient assets exist and the efficiency or certainty gained will merit the extra administration costs. However, there may be tension between the insolvency process, which has among its goals an expeditious resolution, and environmental remediation, which may require many years of investigation or delineation work before a remedial approach can be pursued.

7. Conclusion

At first glance the Redwater case appears to be good news from both an environmental and cooperative federalism perspective. However, in addition to the lender and insolvency uncertainty in the oil and gas industry noted by many commentators, the Redwater decision may complicate insolvency proceedings in any industry with an inherent environmental impact. While Ontario’s smaller oil and gas extraction industry is regulated differently and may not face the same pressures as the industry in Alberta, the Redwater decision will have legal, economic and environmental implications on owners and users of potentially contaminated property, those helping them wind down operations, and other stakeholders.


[1] Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5 (“Redwater SCC“) Note that, while this article concerns the impact of the Redwater decision on industrial operations in Ontario, our colleagues in Alberta have written about the impact of the decision from their perspective as counsel for the trustee/respondent on the appeal.

[2] Although Redwater was a bankruptcy and accordingly, the court analyzed the case under the BIA, analogous issues arise with respect to restructurings under the Companies’ Creditors Arrangement Act, RCS 1985, c C-36 (“CCAA”). This paper will refer to “insolvency proceedings” generally as proceedings instituted under either act. Note that this relationship is not perfect as there are different purposes for the CCAA as compared to the BIA and accordingly, it is possible that a court would reach a different conclusion with respect to paramountcy under the “frustrating the purpose of the act” branch of the paramountcy test. However, the courts have generally interpreted the statutes harmoniously.

[3] Redwater Energy Corporation (Re) 2016 ABQB 278 (“Chambers Decision“)

[4] Orphan Well Association v Grant Thornton Limited 2017 ABCA 124 (“Redwater ABCA“)

[5] Redwater ABCA at para 11.

[6] Redwater ABCA at paras 11 and 124.

[7] SCC Decision at para 16: Abandonment” refers to “the permanent dismantlement of a well or facility in the manner prescribed by the regulations or rules” made by the Regulator (OGCA, s. 1(1)(a)). Specifically, the abandonment of a well has been defined as “the process of sealing a hole which has been drilled for oil or gas, at the end of its useful life, to render it environmentally safe” (Panamericana de Bienes y Servicios S.A. v. Northern Badger Oil & Gas Ltd., 1991 ABCA 181, 81 Alta. L.R. (2d) 45 (“Northern Badger“), at para. 2). The abandonment of a pipeline refers to its “permanent deactivation . . . in the manner prescribed by the rules” (Pipeline Act, s. 1(1)(a)).

[8] “Reclamation” includes “the removal of equipment or buildings”, “the decontamination of buildings . . . land or water”, and the “stabilization, contouring, maintenance, conditioning or reconstruction of the surface of the land” (EPEA, s. 1(ddd))

[9] See for the following Globe and Mail articles for a discussion of attempts in Western Canada at introducing timelines for cleanup of dormant oil and gas wells: December 13, 2018 “B.C. to be first among western provinces to tackle inactive wells” by Jeff Lewis; and November 30, 2018 “B.C. joins Alberta in pledge to impose cleanup timelines on oil, gas wells” by Jeff Lewis and Renata D’aliesio

[10] As the AG of Ontario noted in its submissions, in Ontario the operator of a non-producing oil or gas well is expected to plug the well (abandon in Alberta) within 12 months after it is taken out of use. [O. Reg. 245/97: Exploration, Drilling and Production under the Oil, Gas and Salt Resources Act, R.S.O. 1990, c. P.12 “O.Reg. 245/97“), s. 19; Oil, Gas and Salt Resources of Ontario, Provincial Operating Standards (“Provincial Standards“), ss. 11.01-11.14.] Operators are also required to return the well site to its original condition no later than 6 months from the plugging date. [Provincial Standards, s. 11.13]. In practice this does not always happen.

[11] Redwater ABCA at para 6.

[12] The Orphan Well Association is funded by a levy imposed by the AER, security deposits that licensees have been required to post, and some limited government funding. ABCA decision at para 22.

[13] In a bankruptcy (or liquidating CCAA), the amount available to regulatory obligations that are in substance provable claims is subject to their priority ranking. Generally, these obligations will be unsecured except to the extent they are secured by a specific charge under section 14.06(7) of the BIA. Previously any regulatory or environmental obligations that were not provable in bankruptcy may continue to exist in theory, but typically the burden of those obligations essentially fell on the government. Accordingly, there is an increased incentive for the regulator to extract whatever value it can from the bankrupt estate during its administration

[14] Newfoundland and Labrador v. AbitibiBowater Inc., [2012] 3 SCR 443, 2012 SCC 67 (“AbitibiBowater“)

[15] Chambers Decision at para 139 citing Newfoundland and Labrador v. AbitibiBowater Inc. 2012 SCC 67.

[16] Nortel Networks Corp. (Re), 2013 ONCA 599 (CanLII), leave to appeal to SCC refused, 35642 (17 April 2014) (“Nortel“)

[17] Northstar Aerospace, Inc. (Re), 2013 ONCA 600 (CanLII) (“Northstar“)

[18] Now knowns as the Ministry of Environment, Conservation and Parks.

[19] Chambers Decision at para 164.

[20] Chambers Decision at para 164.

[21] Chambers Decision at para 173.

[22] Chambers Decision at para 173.

[23] Chambers Decision at para 177.

[24]Redwater ABCA at para 24.

[25] Redwater ABCA para 73.

[26] Redwater ABCA Martin dissent at para 107

[27] Redwater ABCA dissent at paras 178-179

[28] Redwater ABCA dissent at para 185

[29] Panamericana de Bienes y Servicios S.A. v. Northern Badger Oil & Gas Ltd., 1991 ABCA 181, 81 Alta. L.R. (2d) 45, 117 A.R. 44 (Alta. C.A.), leave to appeal denied [1992] 1 S.C.R. (S.C.C.)

[30] Redwater SCC at para 124

[31] Redwater SCC at para 139

[32] Redwater SCC at para 146

[33] Redwater SCC at para 236, citing Deschamps J. in AbitibiBowater at para 27.

[34] O.Reg. 245/97, s. 19; Provincial Standards, ss. 11.01-11.14

[35] Provincial Standards, s. 11.13

[36] See Courts of Justice Act, s. 101 provides that “a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so.”

[37] Sherry A Kettle “The Creative Receivership” 2016 Annual Review of Insolvency Law 18


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 is republished with the permission of the authors. It was first published on the Gowling WLG website.

About the Authors

Erin Farrell is a partner in Gowling WLG’s Toronto office, practising in the firm’s advocacy department. Her practice focuses on a variety of commercial litigation matters, including class actions, product and professional liability, environmental law and municipal liability. Erin represents professionals in both civil and administrative matters, and has defended a number of Canadian and foreign clients in the pharmaceutical, medical device and manufacturing sectors in litigation. She also has extensive experience in the banking sector, advising clients on a range of litigation matters, including a variety of motions and injunctions.

Jessica Boily is an associate in Gowling WLG’s Toronto office, practising in Environmental Law. Jessica works with clients to navigate and resolve complex disputes, including advocating for clients in appeals of environmental orders and civil litigation involving contaminated sites. She guides clients through regulatory inspections and investigations, including defending clients charged with federal, provincial and municipal environmental and regulatory offences. Jessica regularly appears before the Environmental Review Tribunal and all levels of courts in Ontario on motions, applications, trials, hearings, appeals and judicial reviews. She also advocates for her clients in mediations and arbitrations. 

Haddon Murray is an associate lawyer in Gowling WLG’s Toronto office, practising in the areas of restructuring and insolvency and corporate commercial litigation. Haddon represents corporations and their directors on claims ranging from standard litigation to complex restructurings. He has experience appearing before the Ontario Superior Court of Justice – Commercial List, as well as the Ontario Court of Appeal.

City of Brantford gets loan for completed brownfield project

As reported by Susan Gamble in the Brantford Expositor, The City of Brantford, Ontario is securing a $4.6 million load to cover the expenses related to the remediation of the Sydenham Pearl Brownfield Site.

The site has already been remediated. City Councillors recently voted in favour of the $4.6 million debenture from the Ontario Infrastructure and Lands Corporation with a 20-year interest rate of 3.4 per cent. The agreement will mean the city repays the loan at a rate of $322,878 a year.

The debenture was approved, along with the project, in 2012 and the remediation at the site is complete, but the money has to be returned to the city’s capital project fund, which has been fronting the money.

Joelle Daniels, the city’s director of finance, explained to the Brantford Expositor that the city had been able to finance the costs of the project over the last six years from working capital since the cash flow was available.

“Typically we have an interim balance and that allows us to not issue the debenture until we know the final cost of the project. We wouldn’t have wanted to borrow the money up front and then carry the interest longer.”

The city has about a dozen outstanding debentures, most of them with the Ontario Infrastructure Lands Corporation but others through the Federation of Canadian Municipalities or regular lending institutions.

The Sydenham-Pearl Brownfield Site is a 6 acre property that had most recently owned by two industrial companies, namely Domtar and Crown Electric, which is surrounded by residential properties, a public playground, a vacant school property, and a rail line.

Crown Electric Manufacturing 17 Sydenham Street
Image Source: (City of Brantford Records Department)

Prior to remediation, soil testing and groundwater testing had shown high levels of industrial chemicals, including but not limited to trichloroethylene and its breakdown products, ethylbenzene and vinyl chloride. 

As is the case with many brownfields, the Sydenham-Pearl Brownfield site has its history rooted in industrial purposes.  The properties have changed hands many times over the course of several decades, and have survived many changes in environmental policies.  Policies including the disposal of hazardous waste and even what chemicals are considered to be hazardous in the first place.

The remediation took 8 weeks to complete and included: the removal of underground storage tanks; excavation and offsite disposal of petroleum hydrocarbons in soil; and in situ soil mixing to break down volatile organic compounds in soil and groundwater.

With remediation activities complete, Phase 3 soil capping and berm construction began. Installation of the soil cap was a requirement of the Ontario Environment Ministry in accordance with the Risk Assessment completed for these properties. Milestone Environmental Contracting completed soil capping and berm construction.

Work at the Sydenham Pearl Brownfield Remediation project was completed in 2017 with required certificates received from the province last spring. The city is currently finishing off sampling and monitoring of the site as required by the Ministry of Environment Conservation and Parks.

The project, which took in 17 and 22 Sydenham, involved removing more than 3,000 cubic metres of contaminated soil to a provincial landfill.

Formerly the site of Crown Electric and Domtar, which made roofing materials, the site was an eyesore, inhabited by squatters and an invitation for fires.

Large fires in 2001 and 2004 meant the city spent hundreds of thousands of dollars to level buildings and clear the area. The properties were seized for tax sales and a remediation plan was created.

Milestone Environmental Contracting spent $2.4 million of the budget on the remediation and another $2.2 million was set aside for the greening process and contingency funding.

Top Environmental Clean Up Projects throughout Canada

by David Nguyen, Staff Writer

1. The Randle Reef Contaminated Sediment Remediation Project – Hamilton, Ontario

Cost: $138.9 million

Contaminant: polycyclic aromatic hydrocarbons (PAHs),
heavy metals

Approximately 60 hectares in size and containing 695 000 cubic metres of sediment contaminated with polycyclic aromatic hydrocarbons (PAHs) and heavy metals, the Randle Reef restoration project is three decades in the making. The pollution stems from various industries in the area including coal gasification, petroleum refining, steel making, municipal waste, sewage and overland drainage.1

Slated to be completed in three stages, the first stage involved the completion of a double steel sheet-piled walled engineered containment facility (ECF) around the most contaminated sediments, with stage 2 consists of dredging of the contaminated sediments into the ECF. Stage 3 will involve dewatering of the sediments in the ECF and treating the wastewater to discharge back into the lake, and the sediments will be capped with 60 cm of sand and silt enriched with organic carbon. This cap will both the isolate the contaminated sediments from the environment and form a foundation or future port structures. The ECF will be capped with layers of several material, including various sizes of aggregate, geo-textile and geo-grid, wickdrains, and asphalt and or concrete. This isolates the contaminants and provides a foundation for future port structures.

The project is expected to be completed by 2022 and cost $138.9 million. The Hamilton Port Authority will take over monitoring, maintenance, and development responsibilities of the facility for its expected 200-year life span. It is expected to provide $151 in economic benefits between job creation, business development, and tourism.

The Canada–United States Great Lakes Water Quality Agreement listed Hamilton harbour (which contains Randle Reef) as one of 43 Areas of Concern on the Great Lakes. Only 7 have been removed, 3 of which were in Canada.

2. Port Hope Area Initiative – Port
Hope, Ontario

Cost: $1.28 billion

Contaminant: low-level radioactive waste (LLRW),
industrial waste

The town of Port Hope, Ontario has about 1.2 million cubic metres of historic LLRW across various sites in the area. The soils and materials contain radium-226, uranium, arsenic, and other contaminants resulting from the refining process of radium and uranium between 1933 and 1988. Additional industrial waste containing metals, hydrocarbons, and dried sewage and sludge with copper and polychlorinated biphenyl (PCBs) will also be contained at the new facility.

The material was spread across town as the tailings were given away for free to be used as fill material for backyards and building foundations. An estimated 800 properties are affected, but the low-level radiation poses little risk to humans. The Port Hope Area Initiative will cost $1.28 billion and will include monitoring before, during, and after the construction of a long term management waste facility (LTMWF).

The LTWMF will be an aboveground engineered storage mound on the site of an existing LLRW management facility to safely store and isolate the contaminated soil and material, as well as other industrial waste from the surrounding area. The existing waste will also be excavated and relocated to the engineered mound. Leachate collection system, monitoring wells, and sensors in the cover and baseliner will be used to evaluate the effectiveness of the storage mound, allowing for long term monitoring of the waste.

The
facility also contains a wastewater treatment plant that will treat surface
water and groundwater during construction of the facility, as well as the
leachate after the completion of the storage mound. The plant utilizes a two
stage process of chemical precipitation and clarification (stage 1) and reverse
osmosis (stage 2) to treat the water to meet the Canadian Nuclear Safety
Commission requirements for water discharged to Lake Ontario.

3. Marwell Tar Pit – Whitehorse, Yukon
Territory

Cost: $6.8 million

Contaminant: petroleum hydrocarbons (PHCs), heavy
metals

This
$6.8 million project funded by the governments of Canada and Yukon will
remediate the Marwell Tar Pit in Whitehorse, which contain 27 000 cubic metres
of soil and groundwater contaminated with hydrocarbons, such as
benz[a]anthracene and heavy and light extractable petroleum hydrocarbons and
naphthalene, and heavy metals such as manganese. Some of the tar has also migrated
from the site.

Contamination
began during the Second World War, when a crude oil refinery operated for less
than one year before closing and being dismantled. The sludge from the bottom
of dismantled storage tanks (the “tar”) was deposited in a tank berm, and over time
other industries and businesses added other liquid waste to the tar pit. In the
1960s the pit was capped with gravel, and in 1998 declared a “Designated
Contaminated Site.”

The
project consists of three phases: preliminary activities, remedial activities,
and post-remedial activities. The preliminary phase consisted of consolidating
and reviewing existing information and completing addition site assessment.

The
second phase of remedial activities began in July 2018 and involves
implementing a remedial action plan. Contaminated soil segregated and heated through
thermal conduction, which vaporizes the contaminants, then the vapours are
destroyed by burning. Regular testing is done to ensure air quality standards
are met. The main emissions from the site are carbon dioxide and water vapour. Remediated
soil is used to backfill the areas of excavation. This phase is expected to be
completed in 2019-2020.

The
final phase will involve the monitoring of the site to demonstrate the
remediation work has met government standards. This phase is planned to last
four years. The project began in 2011 and is expected to be completed in
2020-2021.

4. Boat Harbour – Nova Scotia

Cost: approx.$133 million

Contaminant: PHCs, PAHs, heavy metals, dioxins and
furans

The provinces largest contaminated site, Boar Harbour, is the wastewater lagoon for the local pulp mill in Abercrombie Point, as well as the discharge point for a former chemical supplier in the area. Prior to 1967, Boat Harbour was a saltwater tidal estuary covering 142 hectares, but a dam built in 1972 separated Boat Harbour from the ocean, and it is now a freshwater lake due to the receiving treated wastewater from the mill since the 1967.

The
wastewater effluent contains contaminants including dioxins and furans, PAHs, PHCs,
and heavy metals such as cadmium, mercury, and zinc. In 2015, the government of
Nova Scotia passed The Boat Harbour Act, which ordered that Boat Harbour cease
as the discharge point for the pulp mill’s treated wastewater in 2020, which
allows time to build a new wastewater treatment facility and time to plan the
remediation of Boat Harbour.

The
estimated cost of the cleanup is $133 million, which does not include the cost
of the new treatment facility. The goal is to return the harbour to its
original state as a tidal estuary. The project is currently in the planning
stages and updates can be found at https://novascotia.ca/boatharbour/.

5. Faro Mine – Faro, Yukon

Cost: projected$450 million

Contaminant: waste rock leachate and tailings

Faro Mine was once the largest open-pit lead-zinc mine in the world, and now contains about 70 million tonnes of tailings and 320 million tonnes of waste rock, which can potentially leach heavy metals and acids into the environment. The mine covers 25 square kilometres, and is located near the town of Faro in south-central Yukon, on the traditional territory of three Kasha First Nations – the Ross River Dena Council, Liard First Nation and Kaska Dena Council. Downstream of the mine are the Selkirk First Nation.

The
Government of Canada funds the project, as well as leads the maintenance, site
monitoring, consultation, and remediation planning process. The Government of
Yukon, First Nations, the Town of Faro, and other stakeholders are also responsible
for the project and are consulted regularly to provide input.

The
entire project is expected to take about 40 years, with main construction activities
to be completed by 2022, followed by about 25 years of remediation. The
remediation project includes upgrading dams to ensure tailings stay in place,
re-sloping waste rock piles, installing engineered soil covers over the
tailings and waste rock, upgrading stream diversions, upgrading contaminant
water collection and treatment systems.

6. Sylvia Grinnell River Dump – Iqaluit,
Nunavut

Cost: $5.4 million

Contaminant: PHCs, polychlorinated biphenyls
(PCBs), pesticides

Transport Canada awarded a contract of over $5.4 million in 2017 for a cleanup of a historic dump along the mouth of Sylvia Grinnell River in Iqaluit, Nunavut. The dump contains metal debris from old vehicles and appliances, fuel barrels, and other toxic waste from a U.S. air base, and is a site for modern day rogue dumping for items like car batteries. This has resulted in petroleum hydrocarbons, polychlorinated biphenyls (PCBs), pesticides, and other hazardous substances being identified in the area.

The Iqaluit airfield was founded in Frobisher Bay by the U.S. military during World War 2 as a rest point for planes flying to Europe. During the Cold War, the bay was used as part of the Distant Early Warning (DEW) Line stations across the north to detect bombers from the Soviet Union. When the DEW was replaces by the North Warning System in the 1980s, these stations were abandoned and the contaminants and toxic waste left behind. Twenty-one of these stations were remediated by the U.S. Department of National Defence at a cost of about $575 in 2014.

The Sylvia Grinnell River remediation project is part of the Federal government’s responsibility to remediate land around the airfield that was transferred to the Government of Nunavut in the 1990s.The contract was awarded in August 2017 and was completed in October. The remaining nontoxic is sealed in a new landfill and will be monitored until 2020.

7. Greenwich-Mohawk Brownfield – Brantford,
Ontario

Cost: $40.78 million

Contaminant: PHC, PAC, heavy metals, vinyl
chloride

The
City of Brantford have completed a cleanup project of 148 000 cubic metres of
contaminated soil at the Greenwich-Mohawk brownfield site. The area was historically
the location of various farming manufacturing industries that shut down,
leaving behind contaminants like PHC, PAC, heavy metals like lead, xylene, and
vinyl chloride.

Cleanup
began in 2015, and consisted coarse grain screening, skimming, air sparging,
and recycling of 120 000 litres of oil from the groundwater, using biopiles to
treat contaminated soil onsite with 73% of it being reused and the rest
requiring off site disposal.

Barriers
were also installed to prevent future contamination from an adjacent rail line
property, as well as to contain heavy-end hydrocarbons discovered during the
cleanup that could not be removed due to the release odorous vapours throughout
the neighbourhood. The 20 hectare site took two years to clean and costed only
$40.78 million of the allocated $42.8 million between the all levels of
government, as well as the Federation of Canadian Municipalities Green
Municipal Fund.

8. Rock Bay Remediation Project –
Victoria, British Columbia

Cost: $60 million

Contaminant: PAHs, hydrocarbons, metals

Located near downtown Victoria and within the traditional territories of the Esquimalt Nation and Songhees Nation, the project entailed remediating 1.73 hectares of contaminated upland soils and 2.02 hectares of contaminated harbour sediments. The site was the location of a former coal gasification facility from the 1860s to the 1950s, producing waste products like coal tar (containing PAHs), metals, and other hydrocarbons, which have impacted both the sediments and groundwater at the site.

Remediation occurred in three stages. From 2004 to 2006, the first two stages involving the remediation of 50 300 tonnes of hazardous waste soils, 74 100 tonnes of non-hazardous waste soils, and 78 500 tonnes of contaminated soils above commercial land use levels. In 2009, 250 tonnes of hazardous waste were dredged from two sediment hotspots at the head of Rock Bay. About 7 million litres of hydrocarbon and metal impacted groundwater have been treated or disposed of, and an onsite wastewater treatment plant was used to return treated wastewater to the harbour.

Construction
for the final stage occurred between 2014 to 2016 and involved:

  • installing
    shoring along the property boundaries to remove up to 8 metres deep of
    contaminated soils,
  • installing
    a temporary coffer dams
  • draining
    the bay to remove the sediments in dry conditions, and
  • temporary
    diverting two storm water outfalls around the work area.

Stage
three removed 78 000 tonnes of contaminated and 15 000 tonnes of
non-contaminated sediment that were disposed of/ destroyed at offsite
facilities.

Final post-remediation monitoring was completed in January 2017, with post-construction monitoring for 5 years required as part of the habitat restoration plan to ensure the marine habitat is functioning properly and a portion of the site will be sold to the Esquimalt Nation and Songhees Nation.

9. Bushell Public Port Facility
Remediation Project – Black Bay (Lake Athabasca), Saskatchewan

Cost: $2 million

Contaminant: Bunker C fuel oil

 Built in 1951 and operated until the mid-1980s, the Bushell Public Port Facility consist of two lots covering 3.1 hectares with both upland and water lots. The facility supplied goods and services to the local mines, and petroleum products to the local communities of Bushell and Uranium City. Historical activities like unloading, storing, and loading fuel oil, as well as a large spill in the 1980s resulted in the contaminated soil, blast rock, and bedrock in Black Bay that have also extended beyond the waterlot boundaries.

The remediation work occurred between 2005 to 2007, and involved excavation of soil and blast rock, as well as blasting and removing bedrock where oil had entered through cracks and fissures.

Initial
remediation plans were to crush and treat the contaminated material by low
temperature thermal desorption, which incinerates the materials to burn off the
oil residue. However, opportunities for sustainable reuse of the contaminated
material came in the use of the contaminated crush rock for resurfacing of the
Uranium City Airport. This costed $1.75 million less than the incineration
plan, and saved the airport project nearly 1 million litres of diesel fuel. The
crush was also used by the Saskatchewan Research Council in the reclamation of
the Cold War Legacy Uranium Mine and Mill Sites. A long term monitoring event
is planned for 2018.

10. Thunder Bay North Harbour –
Thunder Bay, Ontario

Cost: estimated at upwards to $50 million

Contaminant: Paper sludge containing mercury and other contaminants

 While all of the projects discussed so far have either been completed or are currently in progress, in Thunder Bay, the plans to clean up the 400 000 cubic metres of mercury contaminated pulp and fibre have been stalled since 2014 due to no organization or government designated to spearhead the cleanup.

While
the water lot is owned by Transport Canada, administration of the site is the
responsibility of the Thunder Bay Port Authority, and while Transport Canada
has told CBC that leading the cleanup is up to the port, the port authority was
informed by Transport Canada that the authority should only act in an advisory
role. Environmental Canada has participated in efforts to advance the planning
of the remediation work, but is also not taking the lead in the project either.
Further complications are that the industries responsible for the pollution no
longer exist.

Industrial activities over 90 years have resulted in the mercury contamination, which range in concentrations between 2 to 11 ppm on surface sediments to 21 ppm at depth. The thickness ranges from 40 to 380 centimetres and is about 22 hectares in size. Suggested solutions in 2014 include dredging the sediment and transferring it to the Mission Bay Confined Disposal Facility, capping it, or building a new containment structure. As of October 2018, a steering committee lead by Environment Canada, Transport Canada, Ontario’s environmental ministry and the Thunder Bay Port Authority, along with local government, Indigenous groups, and other stakeholders met to evaluate the remediation options, as well as work out who will lead the remediation.

New Year, New Environmental Rules: Alberta’s Revised Remediation Rules Take Effect in 2019

by Dufferin Harper and Lindsey Mosher, Blake, Cassels & Graydon LLP

On January 1, 2019, significant amendments to Alberta’s Remediation Certificate Regulation came into force. These include:

  • Renaming the regulation the Remediation Regulation
  • Creating a site-based remediation certificate
  • Creating a new reporting requirement for impacts
  • Defaulting to the application of Tier 1 rather than Tier 2 Guidelines
  • Issuing a Tier 2 compliance letter
  • Establishing a new mandatory remedial measures timeline

As discussed in more detail below, many of the amendments address long-standing concerns within the existing remediation certification process. However, in several instances they also introduce new areas of regulatory uncertainty.

SITE-BASED REMEDIATION CERTIFICATE

One of the primary concerns with the existing regime is that it is too limited in scope. Although it provides for remediation certificates to be issued for specific areas of land impacted by a contaminant release, it does not enable a property owner to obtain regulatory signoff for a complete site as opposed to only an area of a site.

In response to that concern, the Remediation Regulation introduces a new type of remediation certificate applicable to a complete site, which is referred to as a “site-based remediation certificate”. A site-based remediation certificate confirms that all contaminants and areas of potential concern both on and off site have been addressed and necessarily involves the submission of more extensive documentation than what is required for a limited remediation certificate.  To assist in the application process, the Alberta government is expected to develop and release a new application form and guide for a site-based remediation certificate application prior to January 2019.

NEW REPORTING REQUIREMENT

A person responsible for a release currently has a statutory obligation to report the release. In addition to this existing obligation, the Remediation Regulation imposes an additional obligation to report any new information about the “impact” of a released substance. Neither of the terms “new information”, nor “impact”, are defined in the Remediation Regulation, and it remains to be seen what additional guidance, if any, will be provided to clarify the scope of the additional obligation. Until that occurs, or until the courts clarify the scope of the obligation, uncertainty will likely prevail.

APPLICATION OF TIER 1 VERSUS TIER 2 GUIDELINES

Under the current Remediation Certificate Regulation, a person applying for a remediation certificate may elect to apply either generic Tier 1 Soil and Groundwater Remediation Guidelines (Tier 1 Guidelines) or site -specific Tier 2 Soil and Groundwater Remediation Guidelines (Tier 2 Guidelines).

The Remediation Regulation removes this discretionary election. Instead, the Tier 1 Guidelines will always be the default remediation standard. Regulatory approval will be required to remediate to Tier 2 Guidelines.

TIER 2 COMPLIANCE LETTER

Another major concern (and criticism) of the existing regime involves the situation where contaminant levels exceed Tier 1 Guidelines but not Tier 2 Guidelines. In such a situation, if the Tier 2 Guidelines are applied, the affected area will not require remediation. Notwithstanding the levels exceed Tier 1 Guidelines and would otherwise require remediation but for the application of the Tier 2 Guidelines, the regulator’s position is that, since there has been no “remediation”, it is unable to issue a “remediation certificate”.  The Remediation Regulation addresses this situation, albeit indirectly.  Rather than amending the scenarios under which a remediation certificate can be issued to account for the above situation, the Remediation Regulation introduces a hybrid type of approval, described as a “Tier 2 compliance letter”. Such a letter will be issued by the regulator when it is satisfied the area or the site meets Tier 2 Guidelines and therefore does not need to be remediated. The difficulty with such a hybrid approach is that it is unclear what type of legal protection a “Tier 2 compliance letter” provides. For example, a remediation certificate currently provides protection against a subsequent environmental protection order being issued for the same contaminant and area. A Tier 2 compliance letter provides no similar protection.  Furthermore, no reference to a Tier 2 compliance letter is set out in Environmental Protection and Enhancement Act and its legal significance is therefore unknown.

NEW REMEDIAL MEASURES TIMELINE

The Remediation Regulation introduces a mandatory timeline for remedial measures for all releases reported after January 1, 2019. If remediation cannot be completed to the satisfaction of the regulator within the following two years, a remedial action plan acceptable to the regulator must be submitted in accordance with the requirements of the Remediation Regulation.

The timeline is not mandatory for the complete remediation of a release. Rather, it is a timeline for the submission of a remedial action plan that will describe what further remedial activities will occur in the future. As such, it appears to be nothing more than an administrative requirement as opposed to an actual remedial efficiency requirement.

NEXT STEPS

The Remediation Regulation came into force as of January 1, 2019, and all releases now must comply with its provisions. Releases reported before January 1, 2019 continue to be regulated in accordance with the old regime under the Remediation Certificate Regulation.

This article was first published on the Blakes Business Class website. It is republished with the permission of the authors and Blakes. Copyright of this article remains with Blakes.


About the Authors

Dufferin (Duff) Harper practices in the areas of environmental law, commercial litigation and regulatory law. He routinely acts for clients on environmental due diligence and liability issues, especially as they pertain to brownfield redevelopment and transportation of dangerous goods. On the corporate side, he specializes in crafting complicated environmental agreements that allocate environmental risks and address remediation requirements. He also advises clients on greenhouse gas matters including the purchase and sale of greenhouse gas emissions credits, offset credits and other environmental attributes.

Duff has acted as lead counsel in several litigation cases involving contaminated sites, both on behalf of contaminated property owners and parties who were allegedly responsible for the contamination. On the regulatory front, he has appeared before numerous levels of courts and assessment tribunals, including tribunals constituted pursuant to the Canadian Environmental Assessment Act (CEAA) ), the National Energy Board (NEB) and numerous provincial regulators.

Duff also provides strategic regulatory compliance and environmental impact assessment advice to industrial clients, such as conventional oil and gas companies, mining companies, companies operating in the oil sands, and liquefied natural gas proponents.

Lindsey Mosher’s practice focuses on energy regulation, as well as environmental and administrative law. She has experience in a broad range of regulatory matters, including regulatory compliance issues, regulatory approvals and hearings, and corporate matters.

Prior to joining Blakes, Lindsey obtained industry experience working in the legal department of a large Canadian oil and gas company, Alberta’s utilities regulator and a large Canadian telecommunications company.

Lindsey has appeared before Alberta’s utilities regulator, the Provincial Court of Alberta and the Court of Appeal of Alberta.