Researchers Perfect Nanotechnology Tool for Studies of Nuclear Waste Storage

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Researchers at the University of Guelph (U of G) recently published an article in Nature Scientific Reports in which they describe the first every use of antimatter to investigate processes connected to potential long-term storage of nuclear waste.  The team studied radiation chemistry and electronic structure of materials at scales smaller than nanometres.

The U of G team worked with collaborators at the French Alternative Energies and Atomic Energy Commission and utilized the TRIUMF particle accelerator in Vancouver.  Based on these first-ever measurements at the accelerator, the team able to to show that their system is a proven tool that will enable radiation studies of material to be used to store nuclear waste.

“This system can now be applied along with other measurements to determine and help to potentially design the best material for containers and barriers in nuclear waste management”, said the U of G professor Khashayar Ghandi, the lead author of the research paper.

Currently, used nuclear fuel bundles – still highly radioactive — are held in vaults in temporary storage.  Long-term, experts aim to use deep geological repositories to permanently entomb the material. Buried in rock formations hundreds of metres underground, the fuel containers would be held in engineered and natural barriers such as clays to shield people and the environment from radiation. It takes almost 100,000 years for radioactivity from nuclear waste to return to the level of natural uranium in the ground.

The researchers also discovered the intriguing properties of clays that may make them useful in other industries. Clays may serve as catalysts to change chemicals from one form to another – a benefit for petrochemical companies making various products from oil. Other industries might use clays to capture global-warming gases such as carbon dioxide and use those gases to make new products.

The research may ultimately help in designing safer underground vaults for permanent storage of radioactive waste.  Other applications of the nanotechnology tool include new ways of generating and storing hydrogen, and technologies for capturing and reusing greenhouse gases.

Canada: $150,000 Fine for Oil Leak from Fuel Truck

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Representatives of Hay River Mobile Home Park Ltd., located in Northwest Territories, recently plead guilty in response to a charge of violating subsection 36(3) of the Canada Fisheries Act. The company was fined $150,000, which will be directed to the Government of Canada’s Environmental Damages Fund.

Under the subsection 36(3) of the Fisheries Act, no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.

The events that led to the fine occurred in October 2016.  Environment and Climate Change Canada enforcement officers responded to a report from the Northwest Territories 24-Hour Spill Report Line that a fuel sheen had been observed on the Hay River. An investigation determined that a fuel truck parked on Hay River Mobile Home Park Ltd. property had released a diesel/water mixture, over a 20-hour period, onto land adjacent to the Hay River. An undetermined amount of the mixture then entered the Hay River, which is home to a variety of fish species, including walleye, whitefish, and northern pike.

The spill of fuel oil from the truck was the result of a malfunction.  The truck remained idle through years of freezing and thawing, until a filter used to separate the truck’s water from fuel cracked. The vehicle’s remaining fuel subsequently drained out and flowed on to the banks of the Hay River.  An expert brought testified in court that a projected that between 3.3 liters and 79.1 liters of fuel seeped into the river.

As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

 

Ontario to promulgate Excess Soil Regulations

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After much speculation and delay, the Province of Ontario finally announced that the On-site and Excess Soil Regulation will take effect on July 1, 2020.  In a speech at the Excess Soil Symposium in Ajax, Ontario, the Environmental Minister, Jeff Yurek announced that the government is moving ahead with making changes to and finalizing the regulations under the Environmental Protection Act.

“As Ontario’s population continues to grow, we need to ensure our valuable resources and prime land don’t go to waste,” said Minister Yurek. “These changes will remove barriers for communities, developers and property owners to clean up and redevelop vacant, contaminated lands and put them back into productive use. This will benefit the local economy and create jobs, and keep good, reusable soil out of our landfills.”

Under the new regulations, Ontario is clarifying rules on the management and transport of excess soil to help optimize the resources we have and reduce costs in development, which will benefit communities. Clear rules and new tools to work with municipalities and other law enforcement agencies will also strengthen enforcement of illegal dumping of excess soil. These regulatory changes will provide greater assurance that soil of the right quality is being reused locally, reduce greenhouse gas impacts from truck transportation, and prevent reusable soil from ending up in landfills.

Ontario’s government is moving forward with its commitment to make it safer and easier to use local excess soil and put vacant, prime lands back into good use

“The Ontario Home Builders’ Association is supportive of clarifying rules regarding the reuse and management of excess soils generated from construction sites,” said Joe Voccaro, CEO, Ontario Home Builders’ Association. “This will create business certainty, while ensuring the tracking and quality of soil being deposited and increasing opportunities for reuse on other sites. Furthermore, exempting historic road salting that was preventing developers from obtaining an RSC is a very positive amendment supporting new housing supply.”

Ontario is also reducing barriers to clean up brownfields, which are properties where past industrial or commercial activities may have left contamination, so underused land in prime locations can be cleaned up and put back to productive use, benefitting the neighbourhood and businesses. This will also provide developers with more certainty and opportunity to redevelop brownfield properties, while still maintaining human health and environmental protection.

Quick Facts

  • An estimated 25 million cubic metres of excess construction soil is generated each year.
  • The management of excess soil, including trucking and disposal fees, can account for a significant part of the costs in large development projects, accounting for an estimated 14 per cent of overall construction costs.
  • Soils travel long distances to either a landfill or reuse site. On average, a load of excess soil travels 65 km or more.
  • Greater local reuse of excess soils can save between five to 10 per cent of overall project costs.

 

U.S. DOT Proposing Changes to Hazardous Materials Regulations

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The U.S. Department of Transportation (DOT) is proposing a change to the Hazardous Materials Regulations to allow the transportation of liquefied natural gas (LNG) on railcars. The overture builds on an executive order by President Donald Trump issued earlier this year.

Currently, LNG can only be transported by rail using a portable tank with prior approval from the Federal Railroad Administration (FRA), although the Hazardous Materials Regulations allow DOT 113 specification tank cars to be used for hauling other flammable liquids. Under a notice of proposed rule- making, DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) now seeks comment on changes that would allow LNG to be transported in these cars as well.

Citing LNG’s expanding role as a critical domestic and international energy resource, PHMSA proposes to permit the transport of LNG by rail tank car to meet the demand for greater flexibility in the modes of transportation available to transport LNG. The proposed rule would facilitate harmonization across the North American rail network. In Canada, LNG is already authorized for transport in DOT-113 equivalent specification rail tank cars (TC-113C120W).

“Safety is the number one priority of PHMSA and we understand the importance and will make it a top priority to evaluate all public comments and concerns raised throughout the rule-making process,” said PHMSA administrator Skip Elliott. “This major rule will establish a safe, reliable, and durable mode of transportation for LNG while substantially increasing economic benefits and our nation’s energy competitiveness in the global market.”

“FRA shares regulatory oversight responsibility for the safe transportation of hazardous materials by rail,” said Ronald Batory, Federal Railroad Administration administrator. “This rule-making is consistent with our systemic approach to accident prevention, mitigation, and emergency response preparedness.”

Packaging requirements

In the NPRM, PHMSA proposes the following packaging controls:

  • Authorized transport of LNG by rail in DOT-113C120W tank cars. DOT-113 tank cars are vacuum-insulated and consist of an inner stainless steel tank enclosed with an outer carbon steel jacket shell specifically designed for the transportation of refrigerated liquefied gases.
  • Amend the Pressure Control Valve Setting or Relief Valve Setting Table in 49 Code of Federal Regulations § 173.319(d)(2) by adding a column for methane, thus identifying the pressure relief valve requirements for DOT-113s transporting methane.

Operational controls

PHMSA is not proposing new operational controls for transport of LNG by rail tank car. However, PHMSA notes the operational controls (e.g., speed restrictions) set forth in the Association of American Railroads (AAR) Circular OT-55 would apply to the bulk transport of LNG by rail in a train composed of 20 car loads or intermodal portable tank loads in which LNG is present along with any combination of other hazardous materials. OT-55 is a detailed protocol establishing railroad operating practices for the transport of hazardous materials that has been voluntarily adopted by the industry.

Safety case for LNG-by-rail

DOT-113 specification tank cars, including DOT-113C120W tank cars, include a stainless steel inner vessel and a thick steel outer vessel (or jacket); there is an insulated vacuum space between the two vessels to minimize the rate of heat transfer from the atmosphere to the refrigerated liquid during transport; and the cars include pressure relief devices, vents, and valves to prevent or minimize overpressure releases.

Additional requests for information

In addition to commenting on the specific packaging requirements listed above, the NPRM asks the public to comment on the following topics that are within the scope of the NPRM:

  • Whether the authorized transport of LNG by rail has the potential to reduce regulatory burdens, enhance domestic energy production, and impact safety.
  • Whether there is a reasonable basis for limiting the length of a train transporting LNG tank cars and what length is appropriate.
  • Whether there is a reasonable basis for limiting the train configuration, such as by limiting the number of LNG tank cars in a train consist or by restricting where LNG tank cars may be placed within the train.
  • Whether PHMSA should consider any additional operational controls and whether such controls are justified by data on the safety or economic impacts.

Comments on the LNG-by-rail NPRM are due on or before December 23, 2019.

 

 

Asbestos Quebec to change its name

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The town of Asbestos, Quebec is known mainly for its asbestos mine, the largest employer for the town of approximately 7,000.  The mine, until recently, was the largest asbestos mine in the world.  The Town is located about 180 km east of Montreal, in the Estrie region of southeastern Quebec

The Town Council recently issued a news release in which it conceded that the word “Asbestos” did not have a good connotation and that it was favourable to a name change.  As such, the Town is accepting suggestions from citizens as to the new name.

The Jeffrey mine, in Asbestos, first opened in the late 1880’s.  The open pit mine is  ver two kilometres in diametre, 350 metres in depth, and six square kilometres in total area, making it the largest open pit asbestos mine in the Western hemisphere.  The mine closed in 2011.

 

In the fall of 2018, the Canadian government announced that it would be making it illegal to import, manufacture, sell, trade or use products made with the asbestos mineral.

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

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

Jeffrey Mine, Asbestos, Quebec (Photo Credit: Yvon Viens)

 

EPA Finalizes Universal Waste Rule for Hazardous Aerosol Can Wastes, Streamlining Requirements for Their Management

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Written by Aaron H. Goldberg, Principal, Beveridge & Diamond

On November 15, 2019, the Administrator of the U.S. Environmental Protection Agency (EPA) signed a final rule to classify and regulate hazardous aerosol can wastes as “universal wastes” under the federal Resource Conservation and Recovery Act (RCRA) hazardous waste rules. Once the rule becomes effective, hazardous aerosol can wastes will be subject to substantially reduced requirements for collection and transport, in order to facilitate and encourage environmentally sound recycling or disposal. However, the ultimate recycling and disposal facilities will remain subject to essentially the same requirements as currently apply. As discussed below, even though the final rule is largely consistent with existing requirements for other universal wastes, and even though EPA has finalized the proposal with only limited changes, there are several aspects of the rule that warrant special attention.

The final rule builds on existing universal waste requirements for other ubiquitous hazardous wastes, such as batteries, lamps, mercury-containing equipment, and certain pesticides. See generally 40 C.F.R. Part 273. Among other things, the aerosol can wastes will no longer have to be labeled as hazardous wastes (although they will be subject to reduced marking requirements), they may be stored for up to one year or even longer in some cases (rather than just 90 days for large quantity generators), they may be transported offsite without a hazardous waste transporter or hazardous waste manifest, and collection facilities not engaged in treatment or disposal will not have to be permitted as hazardous waste storage facilities. In addition, only large handlers of universal wastes (e.g., facilities that accumulate 5000 kg or more of total universal wastes at any time) will be required to notify EPA and track shipments of the hazardous aerosol can wastes. Aerosol can wastes generated by households and Very Small Quantity Generators (VSQGs) meeting applicable requirements will remain exempt from the RCRA regulations. However, all aerosol wastes will remain subject to applicable requirements under the U.S. Department of Transportation (DOT) Hazardous Materials Regulations (HMR) (although under those rules, if aerosol cans are classified as universal wastes, they will not be subject to the enhanced DOT requirements that normally apply to RCRA hazardous wastes). See 49 C.F.R. § 171.8 (defining “hazardous wastes” for purposes of the HMR as materials subject to federal hazardous waste manifest requirements).

Several key aspects of the final rule are discussed below. We note that the discussion here is based solely on the pre-publication version of the final rule and preamble. It is possible (though unlikely) that there may be some substantive changes in the rule when it is published in the Federal Register. In addition, EPA’s Response-to-Comments document and economic assessment for the rule (neither of which are currently publicly available) may provide a further gloss on some of the issues addressed here.

Definition of Aerosol Can

The proposed rule would have limited the definition of “aerosol cans” subject to the rule to containers that use gas to “aerate and dispense any material … in the form of a spray or foam.” In this way, the proposal would have excluded cans that dispense products without aeration (e.g., shaving gels) and cans that release only gas (e.g., spray dusters or aerosol horns). In response to comments, EPA modified the definition in the final rule so that it is more inclusive and consistent with DOT rules. Under the final rule, cans that dispense products without aeration will be eligible for management as universal wastes. However, gas-only products will be excluded. DOT is currently considering a petition to revise its definition to include these products, consistent with international rules for dangerous goods transport. See Petition of the Consumer Specialty Products Association, et al. to DOT (September 28, 2017). Unfortunately, the preamble to EPA’s final rule does not mention this petition, and it is unclear if the Agency would amend the definition in the universal waste rule if/when DOT changes its definition.

Status of Aerosol Cans with Evidence of Leakage/Damage

The proposed rule would have excluded from the scope of the universal waste rule any aerosol cans that “show evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions.” Commenters expressed concern that this proposed limitation was highly ambiguous, could effectively eviscerate the rule and was unnecessary from an environmental perspective (since EPA could simply require more protective packaging for leaking aerosol cans). In the final rule, the Agency agreed with the commenters and added new provisions specifying that “[u]niversal waste aerosol cans that show evidence of leakage must be packaged in a separate closed container or overpacked with absorbents, or immediately punctured and drained.” EPA also modified the definition of aerosol can so that it no longer requires that cans be “intact” to be classified as universal wastes.

Status of Empty Aerosol Cans

The final rule, like the proposed rule, excludes aerosol cans that meet the regulatory definition of an empty container. This exclusion raises a number of issues, as discussed below:

  • Commenters on the proposed rule asked EPA for clarification about when aerosol cans are properly deemed empty. They noted that it is unclear how the regulatory definition of empty and related Agency guidance applies to aerosol cans. EPA largely side-stepped this issue in the final rule. It merely restated the regulations and guidance and said that further clarifications or modifications to the relevant rules were outside the scope of the rulemaking.
  • Commenters raised questions about the relationship of the exclusion for empty cans with past EPA statements that such cans may sometimes exhibit the characteristic of reactivity. See EPA, RCRA Hotline Report (September 1987) (RCRA Online #13027) (“Irrespective of the lack of contained waste, [empty] aerosol cans would be a RCRA hazardous waste [to the extent] they demonstrate the hazardous characteristic of reactivity”). Neither the final rule nor the preamble addresses this issue.
  • The proposal left open the question as to whether empty cans could voluntarily be managed as universal wastes. In the preamble to the final rule, EPA clarified that empty cans may be managed as universal wastes, even though they do not have to be.

Other Issues Related to the Applicability of RCRA to Aerosol Cans

Commenters on the proposed rule asked EPA for guidance on several fundamental issues associated with the applicability of RCRA to aerosol cans in the first instance. For example, they requested guidance on the extent (if any) to which aerosol cans destined for recycling are properly classified as solid wastes (and thus potentially hazardous wastes). The commenters also asked the Agency for guidance about when (if ever) waste aerosol cans (empty or non-empty) might be classified as reactive hazardous wastes, and (as noted above) when aerosols cans qualify as empty. However, the final rule and preamble are essentially silent on these issues. Moreover, even though EPA had previously committed to providing such guidance as part of its 2016 strategy for addressing the applicability of RCRA to the retail sector, the preamble to the final rule states that “EPA has [now] completed all commitments made in the Retail Strategy,” which suggests that the guidance may not be forthcoming. See EPA, “Strategy for Addressing the Retail Sector under the Resource Conservation and Recovery Act’s Regulatory Framework” (September 12, 2016) at 6 (“EPA is developing a guide on how to recycle aerosol cans under the existing Subtitle C recycling exclusions”).

Allowance of Certain Processing Activities by Handlers

The final rule allows handlers of universal waste aerosol cans to perform certain limited activities, “as long as each individual aerosol can is not breached and remains intact”:

  • Sorting aerosol cans by type.
  • Mixing intact cans in one container.
  • Removing actuators to reduce the risk of accidental release.

Although there may be some uncertainty, it appears that these activities may only be performed with intact containers, even though (as noted above) EPA has modified the definition of aerosol can to eliminate the “intact” requirement. For these purposes, it appears that a can with a removed (or possibly missing) actuator would still be viewed as intact, assuming the integrity of the can has not otherwise been compromised.

Special Rules for Puncturing and Draining of Aerosol Cans

Even though puncturing and draining of hazardous aerosol cans is currently exempt from RCRA regulation if performed as part of a recycling process, the final rule imposes new requirements for puncturing and draining by handlers of universal waste aerosol cans (whether they are processing their own aerosol can wastes or those generated by others). For example, these activities will have to be performed using a device (commercial or “homemade”) that is specifically designed to do so in a safe manner that effectively contains residual contents and emissions. The handler will have to develop and follow written procedures to ensure proper operation of the equipment (including segregating incompatible wastes and preventing fires/releases) and to respond to any spills or releases, and it will have to ensure relevant employees are adequately trained. The contents drained from the aerosol cans will have to be “immediately” transferred to a tank or container meeting applicable hazardous waste generator requirements (e.g., the requirements for 90-day accumulation units or satellite accumulation units). A hazardous waste determination will have to be performed on the drained contents, and the materials will have to be managed accordingly. The drained cans will have to be recycled, and since they will be eligible for the RCRA exemption for recycled scrap metal, they will not have to be subjected to a hazardous waste determination. EPA notes that all of these activities must be conducted in compliance with all applicable federal, state, and local laws and regulations related to solid or hazardous wastes, as well as occupational safety and health.

Adoption by the States

EPA states that the final rule is “less stringent than the current federal program” and thus “states … will not have to adopt the universal waste regulations for aerosol cans.” However, as noted above, the new rules for puncturing and draining are more stringent than current rules (because those activities are currently exempt from regulation if performed as part of a recycling process), which casts doubt on the Agency’s claim that the final rule (in its entirety) is less stringent.

Shipments Between States

Despite requests from commenters for EPA to address this issue, the final rule and preamble are silent on the requirements that will apply to aerosol cans shipped from, to, or through states that do not adopt (or have not yet adopted) a universal waste rule for aerosols. In prior universal waste rules for other wastes, EPA has claimed that, in such circumstances, the waste would have to be transported in the non-universal-waste states by a hazardous waste transporter and with a hazardous waste manifest. See, e.g., 64 Fed. Reg. 36,466, 34,483 (July 6, 1999) (universal waste rule for lamps) (“[if] a [federal universal waste is] transported across a State in which it is subject to the full hazardous waste regulations … [t]ransport through the State must be conducted by a hazardous waste transporter and must be accompanied by a manifest”); 70 Fed. Reg. 45,508, 45,517 (August 5, 2005) (universal waste rule for mercury-containing equipment) (same). However, there appears to be a strong argument under the Hazardous Materials Transportation Act (HMTA) that state rules requiring a manifest are preempted if (as would be the case here) federal law does not require a manifest. See, e.g., Letter from Michael Shapiro, Director, Office of Solid Waste, EPA, to Richard J. Barlow, Chair, Northeast Waste Management Officials’ Association (June 11, 1996) (RCRA Online #14135) (“[although] preemption authorities are [generally] quite foreign to RCRA … they are introduced into the transporter area by the statutory directive in RCRA to maintain consistency with the DOT framework”); 49 Fed. Reg. 10,490, 10,492 (March 20, 1984) (federal law “prohibit[s] States from requiring separate State manifests or other information to accompany waste shipments”); id. at 10,494 (“States are not precluded from setting up another system of forms . . . as long as the system does not interfere with the actual shipment of waste [and] transporters [are] not . . . required to carry these forms”). Similar arguments may apply with respect to state requirements to use a hazardous waste transporter for a federally designated universal waste.

Next Steps

The final rule is expected to be published in the Federal Register in the next few weeks and will become effective at the federal level six months later, or approximately in early June 2020. The rule will not become effective in most states unless and until they act to adopt the rule, which (as discussed above) EPA says they will not be required to do (on the ground that the rule is less stringent than existing requirements). However, because several states have previously classified hazardous aerosol can wastes as universal wastes (e.g., California, Colorado, Utah, New Mexico, and Ohio) and another is poised to do the same (i.e., Minnesota), it can be reasonably expected that virtually all states will eventually follow EPA’s lead on this issue (possibly with some variations).

For more information about the final rule and its potential implications, please contact Aaron Goldberg or any other members of our Waste and Recycling practice group.

This article has been republished with permission of the author.  It was first published on the Beveridge & Diamond website.  

 

About the Author

Aaron applies his encyclopedic knowledge of hazardous waste regulatory law to help companies comply under federal and state laws—throughout all 50 states—and abroad.

He holds an advanced degree in chemistry, has extensive training in economics, and is a former U.S. Environmental Protection Agency consultant. His unique, multidisciplinary background—law, science, economics, and government—informs nearly every aspect of his work and makes him a useful bridge between attorneys, engineers, business managers, consultants, and regulators.

Aaron has focused on hazardous waste issues since the beginning of the federal regulatory program in 1980. With this historical experience, he offers clients comprehensive regulatory counsel on hazardous waste matters, including compliance strategy, advocacy, rulemaking challenges, end-of-life product management, permits, variances, and enforcement action response. His clients consist of companies and trade associations in the chemicals, electronics, recycling, petroleum, pharmaceuticals, retail, steel, and mining industries.

U.S. EPA Green Remediation Best Management Practices

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Excavation and Site Remediation

Excavation of soil, sediment or waste material is often undertaken at contaminated sites to address immediate risk to human health or the environment; prepare for implementation of remediation technologies and construction of supporting infrastructure; and address contaminant hot spots in soil or sediment.

The excavation and subsequent backfilling processes rely on use of heavy earth-moving machinery and often involve managing large volumes of material. Many opportunities exist to reduce the environmental footprint of the various cleanup activities and improve ultimate restoration of the disturbed land, surface water and ecosystems.

The United States Environmental Protection Agency (U.S. EPA) Fact Sheet outlines specific best management practices (BMPs) that can be used to minimize the environmental footprint concerning emission of air pollutants and use of water, energy, and other resources at excavation sites. The refined set of BMPs is based on recent experiences reported by regulators, property owners, cleanup service contractors and other stakeholders in the cleanup community.

Sites with Leaking Underground Storage Tank Systems

The U.S. EPA estimates that approximately 65,450 releases of petroleum or hazardous substances from federally regulated underground storage tanks (USTs) had not yet reached the “cleanup completed” milestone as of September 2018.  The Association of State and Territorial Solid Waste Management Officials (ASTSWMO) estimates that in 2017, alone, state cleanup funds collectively spent approximately $1.113 billion in cleaning up UST releases.

Use of green remediation best management practices (BMPs) can help minimize the environmental footprint of cleanup activities at UST-contaminated sites and improve overall outcomes of the corrective actions. In accordance with the EPA Principles for Greener Cleanups, BMPs outlined in the updated “Green Remediation Best Management Practices: Sites with Leaking Underground Storage Tanks” fact sheet are intended to complement federal requirements for corrective actions at UST-contaminated sites and may enhance state-administered UST program requirements.

Ontario Government Proposes new rules around Administrative Monetary Penalties

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The Ontario government recently proposed amendments to regulations dealing with Administrative Monetary Penalties (AMPs) under the Ontario Environmental Protection Act.  The reason given for the proposed amendments was that they would remove regulatory overlap and result in regulations that are focused and streamlined.

An AMP is a financial penalty for non-compliance that provides an incentive to the violator to return to compliance and deter future non-compliance.  Administrative penalties are used across the Government of Ontario in regulated program areas such as forestry, consumer protection, energy, and waste diversion.

Deficiency in the Existing AMPs

AMPs are regularly used in other jurisdictions, particularly Canada and the United States, to support the enforcement of environmental laws (e.g. British Columbia, Alberta, Canada, Quebec, Ohio, Vermont and Minnesota).

AMPs, as a compliance and enforcement tool (i.e. environmental penalties), are currently available to the Ontario Environment Ministry for some land, water and air violations, but are limited in scope. This gap leaves many program areas with limited enforcement tools and affects the ministry’s ability to effectively hold polluters accountable.  In addition, some of the acts proposed to be amended that are enforced by the Ontario Environment Ministry do not have the enabling authority to issue administrative monetary penalties (e.g. Safe Drinking Water Act, Pesticides Act), while others are out of step with best practice (e.g. Nutrient Management Act, 2002).

Jeff Yurek, Ontario Environment Minister

Proposed Amendments

The are proposed legislative amendments expand and/or clarify enabling authority to issue administrative monetary penalties for environmental violations under key environmental statutes, including:

  • Nutrient Management Act, 2002
  • Ontario Water Resources Act
  • Pesticides Act
  • Safe Drinking Water Act, 2002

The proposed amendments would enable administrative monetary penalties to be issued for a broad range of environmental violations under the acts mentioned above. To take effect, violations that may be subject to an administrative monetary penalty would be prescribed in regulation.

The proposal, along with recent amendments to the Environmental Protection Act, would replace existing monetary penalties (i.e. environmental penalties) under the Environmental Protection Act and Ontario Water Resources Act.

Key provisions under the proposed administrative monetary penalty approach are set out under each act and include:

  • set maximum penalty amounts or higher if the economic benefit achieved via the violation was higher (penalty amounts would be set by a regulation). The maximum penalty amounts set in the acts are as follows:
    1. Ontario Water Resources Act – $200,000 per contravention (same as the Environmental Protection Act)
    2. Pesticides Act – $100,000 per contravention
    3. Safe Drinking Water Act, 2002 – $100,000 per contravention
    4. Nutrient Management Act, 2002 – $10,000 per contravention
  • ability to review and/or appeal the administrative penalty
  • an annual report listing the administrative penalties issued in the last calendar year
  • provisions to enable the implementation of administrative monetary penalties in regulation (e.g. how to set administrative monetary penalty amounts, who they can apply to, and how violators can seek reductions in penalty amounts for taking action to prevent or mitigate the contravention

The government argues that the broader use of AMPs would help it take strong action against illegal activity, ensure that polluters are accountable for their actions, and deal with environmental violations that do occur, more efficiently and appropriately.  Prosecution would continue to be used as an enforcement tool but may be limited to serious violations.

If passed, these proposed legislative amendments would allow for future regulations to implement administrative monetary penalties to more violations, such as, but not limited to:

  • illegal sewage discharges into waterways
  • selling pesticides without a license
  • failing to have a certified drinking water operator
  • violating terms of a permit to take water

Criticism of the Proposal

Environmental activists decried the proposal and charged that it will result in lightened consequences for polluters.  Keith Brooks, spokesperson for Environmental Defence, stated in press release, “It is highly deceptive of the Ontario government to claim that it is doing more to hold polluters accountable, when they are actually cutting the penalties polluters face.”

The environment critic from the Ontario New Democratic Party, Ian Arthur, an MPP for Kingston and the Islands, stated: “The Ford government has proposed eliminating an existing $100,000-per-day penalty for environmental polluters and replacing it with a one-off fine of $10,000. Further, the government is pushing to cap environmental fines at an overall maximum of $200,000.”

 

Ontario aerosol manufacturer fined for violating Environmental Emergency Regulations

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Written by Paul Manning, Manning Environmental Law

As of August 24, 2019, the Environmental Emergency Regulations, 2019 replaced the existing Environmental Emergency Regulations, which require industry to take steps to prevent, prepare for, respond to, and recover from the accidental release of harmful chemicals.

The Regulations require that any person who owns, has the charge of, manages, or controls a regulated substance at or above certain quantities to notify Environment and Climate Change Canada. For higher-risk facilities, an environmental emergency plan must be prepared, brought into effect, and exercised.

On November 12, 2019, K-G Spray-Pak Inc. of Concord, Ontario pleaded guilty in the Ontario Court of Justice to two offences under the Canadian Environmental Protection Act, 1999, including one count of violating the Environmental Emergency Regulations and one count of failing to comply with an environmental protection compliance order. The company was ordered to pay a fine of $170,000.

In February 2017, Environment and Climate Change Canada’s enforcement officers launched an investigation, which revealed that K-G Spray-Pak Inc., a manufacturer, marketer, and distributor of aerosol products, had failed to comply with an environmental protection compliance order issued in July 2016.

Environmental protection compliance orders are issued by Environment and Climate Change Canada’s enforcement officers to put an immediate stop to a violation of the Canadian Environmental Protection Act, 1999, to prevent a violation from occurring, or to require action be taken to address a violation.

The company was subsequently charged when it failed to implement and test environmental emergency plans within the prescribed time limit specified in the compliance order.

https://www.canada.ca/en/environment-climate-change/news/2019/11/ontario-aerosol-manufacturer-fined-for-violating-the-canadian-environmental-protection-act1999.html

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

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

About the Author

Paul Manning is the principal of Manning Environmental Law and an environmental law specialist certified by the Law Society of Ontario. He has been named as one of the World’s Leading Environmental Lawyers and one of the World’s Leading Climate Change Lawyers by Who’s Who Legal.
Paul advises clients on a wide range of environmental law issues and represents them as counsel before tribunals and the courts. His practice focuses on environmental, energy, planning and Aboriginal law.

 

 

Nova Scotia’s Auditor General Concerned about Mine Contamination

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In a recent report issued by Nova Scotia’s Auditor says more work needs to be done to address contaminated mine sites throughout the province.

“I drew attention to this accounting because the cost to clean up the province’s contaminated sites could significantly change in the future as the province collects more information on these sites,” Michael Pickup, Nova Scotia’s Auditor General said.

This was the first year the report drew attention to accounting for contaminated sites. The report showed that contaminated site liabilities increased to $372 million in 2019 compared to $107 million five years ago.

According to Pickup’s report, the Department of Lands and Forestry’s investigations of contamination at abandoned mine sites is lacking, leaving a risk of unknown financial, ecological and human health concerns. The report also found an additional 63 mine sites with no liability for remediation because the contamination extent is unknown.

Historical Gold Mining Area Map for Nova Scotia

“Those sorts of legacy sites, unfortunately, date from a period in which there really wasn’t environmental science and people just didn’t have a good understanding of our impact on the environment,” says Sean Kirby, the Executive Director of the Mining Association of Nova Scotia.