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Canadian Report on Environmental Fines and Penalties in 2019

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The Environmental Insurance Group at Berkley Canada recently released there latest report on Environmental Fines and Penalties: 2019 Update Report which covers all of Canada.  The report summarizes the use of fines and penalties by regulators across Canada and explains how environmental insurance may respond to the risk.

The report acknowledges that Canada has historically used fines and penalties sparingly compared to Europe or the United States. Between 1991 and 2009, the average total value of fines and penalties levied in Canada was $1.4 million per year.  In late 2014, this changed dramatically.  That year, Environment and Climate Change Canada (the Canadian equivalent of the U.S. EPA), issued a penalty of $7.5 million against Bloom Lake General Partners (a subsidiary of Cliffs Natural Resources).  The penalty arose out of breaches to the Canadian Fisheries Act and Metal Mining Effluent Regulations.

While fines and penalties are designed to encourage compliance with environmental legislation, they are generally enacted under a strict liability framework.  This results in them often being imposed in response to an accident or unintended event.

Transport Canada Emergency Response Guidebook — 2020

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The Emergency Response Guidebook 2020 edition will be available late spring 2020. For free paper copies’ pre-order, please send an email to: [email protected]

Who is eligible to get free paper copies?

Canadian First Responders from public emergency services such as:

  • municipal fire departments
  • police departments
  • ambulance services
  • RCMP
  • First Nation emergency services, can get free paper copies according to operational needs

These First Responders can get free paper copies according to operational needs, which include:

  • one paper copy of the Guidebook per emergency vehicle or per emergency kit bag (such as for volunteer firefighters who use their personal vehicle)
  • replacement copies as required for broken or damaged copies
  • copies used in class for in-house training purposes, on the condition they are to be retained for reuse in future classes
  • Canadian dispatch centers that pass on technical information about dangerous goods to First Responders can get a small number of free paper copies for use in the dispatch center
  • in remote areas where there are no First Responders available, other Canadian municipal, provincial, territorial or federal authorities acting as public emergency services may get free paper copies according to emergency response operational needs, if they are likely to be the first to arrive on scene of a dangerous goods incident
  • transportation of dangerous goods inspectors, remedial measures specialists and provincial inspectors who respond to dangerous goods accidents can get one free copy each for use during their duties

Trio of Recent Supreme Court of Canada Decisions Signals Provinces Cannot Impede Federal Undertakings under the Guise of Environmental Protection

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Written by Jean Lortie, Dominique Amyot-Bilodeau, Jean-Philippe Mathieu, Patrick Ostiguy of McCarthy Tétrault LLP

On April 16, 2020, the Supreme Court of Canada dismissed an application to appeal a judgment rendered by the Québec Court of Appeal in 2019 regarding the inapplicability of certain provincial environmental requirements with respect to federally-regulated activities carried out on Port of Québec lands (Attorney General of Quebec v. IMTT-Québec inc., 2019 QCCA 1598). This ending to a fourteen-year saga consolidates a recent line of Supreme Court of Canada decisions limiting the application of provincial environmental permit requirements to federal undertakings such as ports, airfields and pipelines. McCarthy Tétrault LLP successfully represented the Quebec Port Authority (“QPA”) and IMTT-Québec Inc. (“IMTT”) in this significant matter, which will have direct and significant implications for many industries throughout the country.

The Port of Québec Matter

Background

IMTT is a federally-incorporated company that handles and stores bulk liquid products in large tanks on federal property it leases from the Quebec Port Authority (“QPA”). IMTT’s customers rent these tanks to transit the various products delivered to the Port of Québec mainly by ship. The products are then loaded onto railway tank cars, tank trucks or other ships and delivered to their final destination. Although IMTT is not responsible for handling the transshipment of products, IMTT monitors the operations, assists operators and provides its clients with heating, cooling, blending and dilution services.

While IMTT had previously obtained certificates of authorization from the Québec environmental authorities in accordance with the provincial Environment Quality Act (“EQA”), it decided not to seek provincial authorization when it began planning new tank construction projects to increase capacity in 2006. Claiming it was a company under federal jurisdiction not subject to the EQA, IMTT rather sought and obtained authorization from the QPA and federal authorities pursuant to the Canadian Environmental Assessment Act and the Canada Port Authority Environmental Assessment Regulations.

The Attorney General of Québec (“AGQ”) initially petitioned the Court for an injunction prohibiting IMTT from using the new reservoirs until a certificate of authorization was delivered pursuant to the EQA. Although the parties entered into a standstill agreement while attempting to reach a negotiated arrangement, IMTT terminated the agreement when provincial authorities decided to hold further public hearings about the project. IMTT and the QPA then initiated legal proceedings seeking a declaration that the EQA’s authorization scheme was either inapplicable or inoperative with regard to IMTT’s federal activities within the Port of Québec. The Attorney General of Canada (“AGC”) intervened in support of the applicants’ position as a result of the AGQ contending that the site of IMTT’s operations was not federal land.

The Trial Judgment

In a Superior Court decision rendered in 2016, the Honourable Gilles Blanchet concluded that the QPA’s and IMTT’s activities take place on federal property and that they also fall under the federal constitutional domains of navigation and interprovincial trade. Applying the doctrine of federal paramountcy, Justice Blanchet found that the challenged provisions of the EQA conflict with and frustrate the purpose of federal port and environmental legislation, including the Canada Marine Act, the Canadian Environmental Assessment Act and related regulations.

The Court of Appeal’s Ruling

On September 26, 2019, the Québec Court of Appeal essentially endorsed the QPA and IMTT’s arguments on both grounds of interjurisdictional immunity and federal paramountcy.

The Court of Appeal upheld the trial judge’s conclusions that IMTT’s activities take place on property belonging to the federal Crown and that they are closely integrated with navigation and shipping, thus falling within these two federal heads of power as per s. 91 of the Constitution Act 1867.

The Court of Appeal noted that the doctrine of interjurisdictional immunity is intended to prevent one level of government – generally provincial – from impairing the unassailable core of a jurisdiction attributed to another level of government. The trial judge had however found that the absence of precedent from a higher court applying the doctrine in the specific context of environmental legislation conflicting against the federal jurisdictions over shipping, navigation or Crown property prevented him from applying the doctrine in the case at bar. The Court of Appeal declined to follow this narrower interpretation of interjurisdictional immunity. Not only is the nature of the impugned provincial legislation not a material factor in the search for a precedent, but the Supreme Court of Canada also left the door slightly ajar in PHS Community Services (2011 SCC 44) to identify new areas of exclusive jurisdiction where interjurisdictional immunity applies. While the Supreme Court limited the scope of application of the doctrine mostly to situations already covered by precedents, interjurisdictional immunity continues to protect the “basic, minimum and unassailable” powers listed in ss. 91 and 92 of the Constitution Act 1867 from being “impaired” by legislation of another level of government.

Applying these principles to the case at bar, the Court of Appeal concluded that there are in fact sufficient precedents establishing federal jurisdiction over the control and planning of Crown property, most notably Lafarge, in which the Supreme Court held that provincial law cannot affect a “vital part” of federal property rights. The Court of Appeal thus found that EQA’s discretionary authorization scheme could not apply to projects under exclusive federal jurisdiction, as it would impair federal jurisdiction over shipping, navigation and Crown property. Put otherwise, the Court of Appeal held that provincial environmental authorization mechanisms must be tied to projects falling under provincial heads of power, which was not the case here with IMTT’s activities.

Furthermore and alternatively, the Court of Appeal upheld the trial Judge’s conclusion that the EQA’s environmental authorization scheme was constitutionally inoperative with respect to IMTT’s activities pursuant to the doctrine of federal paramountcy. Federal paramountcy applies either where there is an operational conflict between a valid provincial law and a valid federal law, or where the provincial statute frustrates the purpose of the federal legislation. In the case at hand, the Court found that the EQA’s discretionary authorization mechanism conflicted with federal regulations, which are intended to grant federal authorities an exclusive right to assess and authorize port projects.

The Trans Mountain Pipeline Matter

Significantly, the Supreme Court of Canada’s decision not to hear the AGQ’s appeal in the Port of Québec matter is in line with other recent decisions from the Court.

On January 16, 2020, the Supreme Court unanimously endorsed the Court of Appeal for British Columbia’s reasons in the Reference re Environmental Management Act (British Columbia) matter (2019 BCCA 181) relative to the Trans Mountain pipeline.

The legislative provisions at hand essentially introduced a requirement that heavy oil companies obtain a hazardous substance permit, which could be withheld or issued with conditions at the province’s discretion. Amongst the admitted objectives of the impugned provisions were the protection of environment and the implementation of the “polluter pays” principle to oil carriers. The Court of Appeal concluded that it needed not to resort to the doctrines of interjurisdictional immunity or federal paramountcy to decide the matter. Rather, it found that the provisions were ultra vires, as their pith and substance was not to generally regulate the environment, but to regulate a federal undertaking, i.e. the interprovincial carrying and exportation of oil.

The Municipality of Mascouche Airfield Matter

On April 16, 2020, the Supreme Court also dismissed the AGQ’s application for leave to appeal in the 9105425 Canada Association file pertaining to the construction of an airfield. In 2018, the Superior Court of Québec had found that the requirement that the promotors of an airfield in the municipality of Mascouche obtain an authorization from provincial authorities to begin construction was constitutionally inapplicable to the project pursuant to the doctrine of interjurisdictional immunity, as it impaired the core of the federal jurisdiction over aeronautics. The Court of Appeal of Québec, in August 2019, declined to take position, as the promotors renounced to the construction of the airfield and the appeal thus became moot. Nevertheless, both the Court of Appeal and the Supreme Court did not see the need to intervene to recognize some form of provincial jurisdiction over the environmental aspects surrounding the construction of an airfield.

Conclusion

In 2007, the Supreme Court of Canada warned against an extensive application of the doctrine of interjurisdictional immunity and advocated in Canadian Western Bank judgment (2007 SCC 22) for the striking of a balance between federal and provincial powers especially in areas of overlapping jurisdiction. The recent Supreme Court of Canada developments highlight the borders of this balance and warn provinces against encroachment of federal undertakings under the guise of environmental protection. The implications of these decisions are significant for federally-regulated undertakings in Canada and will likely be discussed extensively in coming months as governments, industries and other stakeholders consider how to develop industrial projects rapidly as part of the economic recovery efforts, while seeking social acceptability and enhancing environmental protection measures.

About the Authors

Jean Lortie is a partner in the Litigation Group of McCarthy Tétrault in Montréal. His practice focuses on civil and commercial litigation, including class actions; shareholders’ remedies; corporate and securities litigation; insurance law; professional liability; construction law; product liability; property law and intellectual property law.

Dominique Amyot-Bilodeau is a partner in the Business Law Group of McCarthy Tétrault in Montréal. His practice focuses on the development of industrial projects and on environmental, energy and natural resources law.

Jean-Philippe Mathieu is an associate  in the Litigation Group of McCarthy Tétrault in Montréal. His practice includes civil and commercial litigation, class actions, insurance litigation and professional liability.

Patrick Ostiguy is an associate in the Litigation Group of McCarthy Tétrault in Montréal. His practice focuses mainly on civil and commercial litigation and medical liability.

U.S. Supreme Court Limits Use of Tort Claims By Affected Homeowners at Superfund Sites

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Written by Christopher D. Thomas, P. Derek Petersen, Katherine E. May, Perkins Coie LLP

The U.S. Supreme Court stepped into the long-simmering debate about the rights of residential homeowners affected by Superfund response actions, ruling that they are indeed bound by the federal statute’s ban against potentially responsible parties taking additional, unauthorized remedial actions. The case, Atlantic Research Company v. Christian et al., 590 U.S. ___ (April 20, 2020), arose out of remedial action of historic hazardous substances releases from the former Anaconda smelter site in Butte, Montana.

The releases impacted surface soils at nearby residences, and the U.S. Environmental Protection Agency (EPA) selected a response action that called for surface soil containing excess levels of lead and arsenic to be excavated and removed, with soil impacted below those risk-based goals left in place and capped. Though that is standard practice for soil cleanups under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq, the homeowners were unhappy with the selected cleanup goals. In 2008, 98 of them filed suit in Montana state court under a variety of common law theories.

It is undisputed that CERCLA creates a cause of action for recovery of cleanup costs that must be filed in federal courts, while preserving the rights of affected parties to pursue non-conflicting common law claims against polluters. It is likewise clear that CERCLA precludes federal courts from entertaining collateral attacks on EPA-approved remedies and bars potentially responsible parties (PRPs) from disrupting EPA’s ongoing efforts at Superfund sites by taking unauthorized actions.

What has been greatly disputed is how these CERCLA provisions should apply to owners of homes within Superfund sites, given CERCLA’s broad definition of such sites to include “all areas where hazardous substances have come to be located.” In this update, we review the facts and holdings of Christian, discuss key takeaways, and consider the practical implications of the holding on residential cleanups generally.

Facts

Anaconda Copper Company mined copper in the Butte area from 1884 until its stock was acquired in 1977 by Atlantic Richfield Company (ARCO). As Anaconda’s corporate successor, ARCO is liable for necessary remediation. Since the site was listed on the federal National Priorities List in 1983, under EPA supervision ARCO has spent more than $450 million cleaning up some 300 square miles affected by the former smelter’s stack emissions. Part of the cleanup work required by EPA, selected after the usual study and public comment process, has included removing hundreds of thousands of cubic yards of soil from residential yards and pasture fields.

The residential landowners within the Superfund site sued ARCO in Montana state court for common law nuisance, trespass, and strict liability—seeking at least $50 million in restoration costs to return their properties to their original condition. Like many states and Restatement (Second) of Torts § 929 (1978), Montana allows homeowners affected by contamination to recover the costs of restoring their personal homes even if the restoration costs exceed the value of the property. And the homeowners sought a declaration that ARCO was liable for the costs of removing impacted soil that EPA agreed could be safely left in place.

ARCO moved for summary judgment on the restoration damages claim, arguing that CERCLA precluded the Montana courts from hearing the case and also that, as PRPs, the homeowner plaintiffs were prohibited from taking additional cleanup action without EPA approval. After the Montana Supreme Court disagreed on both counts, the U.S. Supreme Court granted certiorari to address the following:

  1. Whether state courts are barred from entertaining common-law claims for restorations that are inconsistent with an EPA-selected remedy by the prohibition against collateral attacks on remedial action decisions established under CERCLA § 113(h), 42 U.S.C. § 9613 (h)
  2. Whether CERCLA preempts such conflicting state-law claims
  3. Whether residential homeowners within the broadly defined reach of a Superfund site are PRPs subject to the CERCLA Section § 122(e)(6) prohibition against engaging in remedial action without EPA approval

The United States filed an amicus brief agreeing with ARCO that a state-law claim for restoration damages is a “challenge” to EPA’s remedial plan over which the federal courts have exclusive jurisdiction pursuant to CERCLA § 113(b). The agency likewise agreed that CERCLA preempts the landowners’ claims and, further, that as PRPs the homeowners could not take remedial action without agency approval.

Holdings

Addressing the jurisdictional issues, the Court held that while CERCLA provides for exclusive federal jurisdiction over claims brought under the statute itself, it does not wholly displace state-court jurisdiction over common law claims for restoration damages. The Court reasoned that CERCLA § 113(b) “deprives state courts of jurisdiction over claims brought under [CERCLA]. But it does not displace state court jurisdiction over claims brought under other sources of law.” The Court further ruled that the Section 113(h) bar against federal courts entertaining challenges to remedies did not by itself limit state-court jurisdiction. The Court opined: “Atlantic Richfield remains potentially liable under state law for compensatory damages, including loss of use and enjoyment of property, diminution of value, incidental and consequential damages, and annoyance and discomfort.”

After declining to limit the jurisdiction of state courts to entertain restoration claims, however, the Court’s next ruling made it unlikely that homeowners could accrue such claims. Section 122(e)(6) of CERCLA prohibits PRPs from undertaking “any remedial action” absent EPA approval at any facility where EPA or a PRP acting under an administrative order or consent decree “has initiated a remedial investigation and feasibility study.” Disagreeing with the Montana Supreme Court, the Court ruled that the landowners were PRPs and, as such, were prohibited from taking remedial action without EPA approval.

The Court’s majority rejected Justice Neil Gorsuch’s contention that their interpretation violated CERCLA’s “saving clauses”—which provide that CERCLA does not preempt liability or requirements under state law. On the contrary, the majority held that interpreting CERCLA’s savings clauses to erase the clear mandate of §122(e)(6) would allow CERCLA “to destroy itself.” And the Court noted that Atlantic Richfield remains potentially liable under state law for damages, including costs from the landowners’ own remediation beyond that required under CERCLA—so long as the landowners first obtain EPA approval of that remedial work. But the Court assumed that the landowners’ proposed plan, which required additional costly soil removal to achieve heightened cleanup goals, was inconsistent with the EPA-selected remedy—which the EPA had already determined to be protective of human health and the environment.

Key Takeaways

  • The Court’s interpretation of CERCLA should reduce the litigation leverage of homeowners over industrial parties remediating residential yards under CERCLA. While it did not rule that common-law tort claims are preempted, the Court effectively limited the relief available for restoration claims in circumstances where the cost of restoration exceeds the value of the property. Obtaining EPA preapproval for additional remediation—which the Court established as a precondition to obtaining monetary relief—is likely to be difficult.
  • Ironically, as the dissent warned, the ability of EPA to effectively foreclose restoration relief against PRPs may increase the agency’s own litigation risk. Nothing in CERCLA precludes the government from takings claims when CERCLA is invoked to impose use restrictions.
  • The decision underscores yet again the role the administrative record can play in subsequent tort litigation. EPA does not approve remedial actions unless it determines that they are protective of human health and the environment. The Christian opinion will give targets of tort claims additional support for the argument that removing all traces of contamination is not necessary to eliminate liability for common law damages.

About the Authors

Christopher D. Thomas, a Partner and Environmental Lawyer at Perkins Coie LLP, has advised industrial, commercial and municipal clients across the United States on a variety of litigated and non-litigated environmental disputes and regulatory compliance issues for more than 30 years. He focuses on complex infrastructure permitting, hazardous substance and toxic tort litigation, enforcement defense and site remediation. Chris has handled matters under all of the major federal environmental and natural resource statutes and numerous parallel state law and tort theories.

Derek Petersen is a Partner and an environmental and business litigator at Perkins Coie LLP with over a decade of experience representing clients before both state and federal courts. He has successfully resolved disputes throughout all stages of litigation—from pre-litigation counseling to jury and bench trials to appeals.

 

Katherine May is an Associate at Perkins Coie LLP that focuses on complex commercial, environmental, constitutional and regulatory disputes for clients in the mining and minerals, metals, aerospace, health care, real estate and financial services industries. She has experience representing clients in federal and state courts at both the trial and appellate levels, as well as before the Arizona Office of Administrative Hearings and other state agencies.

U.S. EHS Compliance and COVID-19: What EHS Executives Can Do Now (and as soon as the Dust Settles)

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Written by Christopher Clare and Patrick Larkin, Clark Hill PLC

On April 2, 2020, the US EPA issued a letter to each member of Congress that makes our point that published Enforcement Discretion policies may require case-specific demonstrations of Force Majeure.

Greater certainty may be obtained under self-disclosure and penalty immunity policies.

On April 10, the US EPA also issued “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19.” As in its March 26th Enforcement Discretion Guidance, EPA affirms that it will require actual evidence of “impracticability” to excuse or mitigate non-compliance with remedial activity obligations.

___________________

Act now – assume there will be gaps in compliance programs.

The COVID-19 pandemic will have (hopefully) once-in-a-lifetime impacts on all of us, including unavoidable and widespread non-compliance with regulatory obligations and deadlines. To help manage enforcement liability, the U.S. EPA and numerous state counterparts have issued new enforcement discretion guidance, and are emphasizing existing penalty relief mechanisms. To qualify for discretionary penalty mitigation, Environmental Health and Safety executives should actively participate in their companies’ resource-triage decisions, and take steps now to ensure self-audit penalty immunity. These steps include:

Take short term actions that, above all, prioritize the physical security of human health and environmental receptors (HH/E).

  • As Hurricane Alley companies (and their EHS managers) have learned, in weeks and months after the disaster, governments will use 20/20 hindsight and expect environmentally significant operations to have prioritized human health and the environment.
  • Where actual harm to HH/E occurs and arguably arises from a resource allocation decision, State and federal agencies may have limited discretion and less inclination to mitigate maximum statutory penalties (and equally existential economic consequences).
  • When making decisions on how to prioritize limited company resources, EHS managers may present their claim to company resources in terms of preserving reputations and avoiding criminal sanctions and/or catastrophic civil liability.

Take the required steps to qualify for state and federal enforcement discretion guidance.

  • These guidance documents recognize that the numerous executive orders restricting travel and calling on citizens to shelter in place will make compliance and agency interactions difficult and tenuous. These documents have thus far focused on: (1) force majeure recognition and self-documentation; and (2) online “registration” of force majeure events.
  • Many permits, consent orders, and remediation agreements contain so-called “Act of God” or force majeure provisions that arguably excuse or defer actual or timely performance of these legal obligations.
  • Establishing the criteria for force majeure typically requires a nuanced demonstration of the elements of eligibility, including:
    • Near-immediate notice of intent to assert force majeure;
    • Demonstration that nonperformance was unavoidable, cause unforeseeable; and
    • Extremely rigorous, arguably unreasonable, levels of mitigation efforts.

Key provisions to look for in enforcement discretion guidance documents include:

  • Specific eligibility criteria for force majeure / enforcement discretion.
  • Waivers/penalty mitigation likely will be subject to a case-by-case analysis.
    • Companies will need to “make their case” for relief.
    • Documentation of direct causal connection between COVID-19 pandemic and impacts on the company will likely be necessary.
    • It is unclear if rigorous force majeure demonstrations will be required. (e.g. non-foreseeability) by most agencies.
  • Violations which could have “practicably” been prevented are likely ineligible.
  • Intentional criminal acts will be ineligible (“knowing but unavoidable” are likely eligible).
  • Discretion policies will likely not apply to non-compliance with cleanup/enforcement orders.
    • Orders are quasi-contractual and often include force majeure terms.
    • For rule-based obligations, the agency may need additional authority to use force majeure defenses to waive enforcement.
  • Most importantly, these exclusions emphasize that EPA guidance provides only a first step:
    • Guidance is an invitation to apply force majeure concepts to rule obligations.
    • No blanket immunity is provided.
  • EPA’s enforcement discretion guidance can be found here. Examples of state agencies with similar guidance include Texas, Pennsylvania, Michigan, and California.
    • State enforcement discretion policies may provide broader waivers of state-specific regulatory requirements and state enforcement of federally delegated programs.
    • When requesting relief from a solely-federal requirement (e.g., EPCRA Tier II, SPCC or Toxic Release Inventory reporting), the EPA’s guidance should be used.
    • Several states’ guidance emphasizes self-reporting and appears to set a lower bar to secure enforcement discretion, e.g., Texas, linked above, and Ohio.

Do not assume these defenses will apply, or be applied consistently, in the future.

  • Many eligibility decisions will not be made until 2021 or later and may be made by agency management from a new Administration or revised post-pandemic roster.
  • It may be prudent to view agency enforcement discretion guidance as offers to apply force majeure principles if/when you can show it is appropriate.
  • Optimistically, a company may consider the guidance as an acknowledgment that one or more of the force majeure elements are generally satisfied.
  • Guidance seems to imply that “un-foreseeability” elements of force majeure are satisfied.
  • The (next) most difficult prerequisite to satisfy is likely to be the adequacy of mitigation efforts.

Use Self-Audit/Self-disclosure Policies to seek full immunity or minimized enforcement responses. 

  • A company’s chance to enforce discretion is greatly enhanced by invoking agency authority to grant penalty immunity: self-audit and self-disclosure programs.
  • Prerequisites and protocols for audit-based immunity vary across agencies, but can generally be optimized by planning and for some, pre-negotiation of terms with the agency.
  • Negotiating a pre-planned audit/disclosure can provide flexibility in the satisfaction of penalty immunity deadlines and criteria. Moreover, the EPA and state agencies are likely to show audit agreement flexibility while the pandemic continues.
  • More information concerning EPA’s self-audit program can be found here.
  • Many states have similar audit/disclosure programs, but eligibility nuances and “trap-doors” require careful attention to detail. See Texas, Pennsylvania, California, and Michigan.

About the Authors

Christopher B. Clare is a Senior Attorney in the Environment, Energy & Natural Resources group in Clark Hill’s Washington, DC office. Chris concentrates his practice on environmental litigation, regulatory compliance matters and business transactions involving environmental issues.

 

Pat Larkin practices exclusively in environmental law, including regulatory compliance, litigation, administrative law, and  environmental counseling in business transactions. Pat regularly represents industrial, transportation, real estate and retail clients in air, water and waste permitting, compliance counseling and audits, voluntary site cleanups, government enforcement actions, and in agency rulemaking and associated stakeholder and guidance writing work groups.

Diesel Fuel Spilled of the Coast of British Columbia

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The Canadian Coast Guard recently confirmed that 4,500 litres of diesel fuel was spilled on April 22nd in Haida Gwaii inlet off the coast of British Columbia.

In a statement, a coast guard spokesperson said that Haida Gwaii-based company Taan Forest was responsible for the spill in Dinan Bay, which connects to Masset Inlet.

The incident happened sometime between midnight and 5 a.m. P.T. on April 29th, a valve feeding diesel to the electrical generator failed on the Toba Barge owned by Taan Forest. Consequently, an estimated 4500 liters of diesel leaked onto the deck of the barge and into the ocean near the dryland sort.

Initial estimates from a National Aerial Surveillance Program (NASP) overflight found 1900L on the water, with over 50% evaporating and dissipating within the first 24 hours.

A statement from the company on said a valve feeding diesel into an electrical generator failed on its Toba Barge and spilled diesel onto the deck. “Consequently, an estimated 4,500 litres of diesel leaked onto the deck of the barge and into the ocean near the dry land sort,” the statement said.

Taan Forest said the spill was near the mouth of the bay and because diesel is “non-persistent” it dissipates rapidly. Taan Forest said booms and sorbent pads had been deployed as soon as the spill was discovered.

Following three days of intense spill response, clean-up efforts were then directed to shoreline monitoring and environmental sampling.  As of April 25, no diesel has been observed on the water with much of the spill dissipating, evaporating and being recovered by response crews. All deployed spill response gear has been collected for disposal in compliance with the Waste Management Plan.

The company made the commitment to continue sampling water, soil, and marine life to assess impacts and identify any further requirements for clean-up efforts.

The most recent incident shows the difference that local training and equipment can make in responding to spills. In this case, the Council of the Haida Nation said that they have been building up local capacity and are more prepared than they would have been in the past.

A virtual Unified Command (UC) continues to oversee the incident. UC includes representatives from HaiCo (Taan Forest), the Council of the Haida Nation, Canadian Coast Guard, and BC Ministry of Environment. Unified Command is also supported by Fisheries and Oceans Canada, and Environment and Climate Change Canada. Due to Coronavirus (COVID19), on-island resources are being utilized on the ground and all meetings are occurring via teleconference.

Keeping Up With Environmental Obligations In The Time Of COVID-19

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Written by Jessica E. M. Boily , Anna Côté , Mark Youden , Alexei Paish and Harry Dahme, Gowling WLG

COVID-19 has brought upheaval across all industries and sectors of society. While this is no less true with respect to environmental matters, many environmental legal requirements remain in place and require continued compliance, despite challenges faced by companies in Canada. On the other hand, many court proceedings and municipal processes have been suspended. This article sets out some practical guidance on how to navigate both ends of this spectrum.

Ongoing environmental compliance is required

Any company that runs a facility must ensure that it continues to run in compliance with all applicable environmental permits, licenses and approvals, except where the regulator has explicitly suspended environmental obligations.

Operational limits and emergency amendments

Many companies have required dramatic changes in their operations in response to government measures to limit the spread of the pandemic. Many are being forced to suspend operations or have their workforce work remotely, while other are being asked to ramp up production for critical supplies and services. As a result, these facilities may be at risk of operating outside of their mandated capacity. It is important to review all applicable operational requirements to ensure that no limits are being exceeded.

Where exceedances of capacity or limits are found or expected:

  • An emergency amendment to the applicable license, permit or approval should be requested immediately. Begin a conversation with the relevant regulator, outlining the reasons that the change is needed.

Reporting Requirements

In addition to ongoing operational limits, many companies are subject to multiple environmental reporting requirements. In some instances, failure to comply with these requirements may constitute an offence. These reporting obligations can include:

  • reports required under an Environmental Compliance Approval, a permit, a license, or an administrative order;
  • reporting in accordance with federal or provincial greenhouse gas reporting regulations;
  • National Pollutant Release Inventory reporting; and
  • reporting requirements in other environmental legislation that may apply on a case-by-case basis.

These reporting requirements can be annual, monthly, on a specific date, or on some other schedule.

As of the date of this article, no relief from reporting requirements has been provided by the Ministry of the Environment, Conservation and Parks (MECP) in Ontario through either order or guidance.

In Alberta, a Ministerial Order was issued on March 31, 2020 that provides relief from all requirements to report pursuant to approvals, licenses or registrations under the Environmental Protection and Enhancement Act, Water Act and the Public Lands Act, except in respect of drinking water facilities. This suspension will be in place until August 14, 2020 or until it is terminated.

Federally, correspondence from the Minister of Environment and Climate Change dated April 2, 2020 indicated that federal environmental laws would not be waived but that Environment and Climate Change Canada would exercise enforcement discretion to take into account any challenges faced by regulated parties due to the pandemic.

Some special considerations in the time of COVID-19 include:

  • Ensuring companies can meet these obligations hindered by a lack of personnel on site to monitor and collect data, a dramatic shift in operations, a lack of access to hard-copy files stored on site, or a lack of time to compile a report while dealing with this unprecedented situation.
  • Verification of upcoming obligations and dates. It is important to have someone closely examine all applicable documents and regulations to verify upcoming reporting obligations and dates. If a company believes that they are at risk of missing a deadline, an extension should be requested in writing well in advance from the relevant regulator.

Emergency and spill response still necessary

The COVID-19 pandemic has not presumptively changed any requirements to report spills, exceedances or other environmental emergencies or to take action to remedy those issues pursuant to relevant approvals (like an Environmental Compliance Approval) or environmental legislation. The Spills Action Centre is operating as normal and MECP officers are still responding to spills and emergencies in the normal course.

Some special considerations may include:

  • Ensuring that if there are reduced numbers of employees working at a facility, employees are still familiar with spill response and reporting policies. Consider conducting refresher training (via electronic platforms) or sending reminders via email or phone to on-site staff, if facility personnel have changed due to COVID-19.
  • Getting in touch with the regulator. In the event of a spill or reportable event in Ontario, facilities should contact the Spills Action Centre as well as the District Office of the MECP if required. In the event environmental officers are difficult to reach due to remote working, document efforts and continue reaching out, including by email, until the requirements of legislation or your approval are met.

Proactive due diligence

While the exact measures that governments will take to combat the spread of COVID-19 might be difficult to anticipate, companies should strive to take the following proactive steps to minimize their immediate and long-term risk exposure:

  • Identify and address outstanding and possible future noncompliance issues.
  • Identify key employees whose environmental regulatory tasks may be disrupted by workplace social / physical distancing measures, taking into consideration recent guidance provided by government regulators for specific industries. For example, on March 18, 2020, B.C.’s provincial health officer announced a number of specific measures intended to reinforce social distancing practices at mining and smelting operations.
  • Create, update and enforce procedures and protocols for employee and supply shortages, including contingency or operational plans.
  • Review agreements with third-party contractors and suppliers, and in particular any force majeure clauses and related notification deadlines and mitigation requirements. Obtaining legal advice to determine the application and enforceability of force majeure clauses during this pandemic is advisable.
  • Where possible, identify alternative methods for achieving compliance with environmental regulatory obligations.

Businesses should also strive to maintain detailed records of all efforts made to achieve and maintain environmental regulatory compliance, including the date on which the recorded activity took place, the individual who undertook the recorded activity, and the date and author of the record. First-hand accounts of compliance efforts should be maintained whenever possible.

Examples of records that should be kept include:

  • Any changes to operational procedures or protocols, or the implementation of existing contingency or operational plans, as a result of COVID-19.
  • Instances of non-compliance, including as applicable the problems faced by the business due to COVID-19 restrictions that gave rise to such non-compliance (e.g. social / physical distancing requirements, staffing shortages, travel restrictions).
  • Actual or attempted communication with federal or provincial regulators.
  • Actual or attempted communication with third-parties.
  • Instances of third-parties being unable to discharge their contractual obligations or delayed in discharging their contractual duties.

Communication

Apart from maintaining regular communication with federal and provincial regulatory bodies in order to address challenges that may arise during COVID-19, businesses should also maintain regular, open communication with employees. Employees should be kept informed about any operational changes that may impact the performance of their duties, including updates to any contingency or operational plans. Employees should also be encouraged to disclose any difficulties that they face in discharging their duties as a result of COVID-19 restrictions.

Environmental engineering services still proceeding, but expect delays

Subject to an Emergency Order under subsection 7.0.2(4) of the Emergency Management and Civil Protection Act, effective March 24, 2020, all non-essential places of business were ordered to be closed in Ontario. Construction work and services that supported health and safety environmental rehabilitation projects and environmental management, monitoring and spill clean-up and response (including environmental consulting and environmental laboratories) were on the March 24 list of essential businesses and were permitted to remain open.

On April 3, 2020, the Government of Ontario released a reduced list of essential businesses. Businesses that deliver or support the delivery of services, including environmental rehabilitation, management and monitoring, and spill clean up and response remain on the essential list.

We understand from many environmental engineering firms that field and lab work is proceeding, but project management functions are being conducted remotely. To the extent companies anticipate needing work done at facilities or properties, it is a best practice to confirm that the environmental engineering firm is engaging in proper precautions, including self-isolation for staff returning from vacations and exhibiting any symptoms.

We expect some unique considerations during this time to include:

  • Allowing access to facilities and properties for field work. Even “non-essential businesses” which will have closed subject to the Emergency Order are permitted to provide temporary access to allow for “performing work at the place of business in order to comply with any applicable law” and to allow for “inspections, maintenance and repairs”. These exceptions may apply to environmental investigations and remedial work, depending on the circumstances.
  • Respecting slower turnaround times for field and lab work. Where these slower turnaround times conflict with regulatory deadlines, it is our expectation that regulators will likely provide appropriate extensions as long as they are provided with notice in writing explaining the issues.
  • Availability of materials and equipment as supply chains are interrupted. It remains to be seen whether border closures and other supply chain interruptions affect the availability of materials and equipment for environmental investigations and remedial work.

Slow-down of litigation in Ontario

Many litigation matters in Ontario are currently on pause and awaiting further guidance from the courts. On March 15, 2020, a Notice to the Profession was issued advising that only urgent civil, family and criminal matters in the Superior Court of Justice would be heard. The guidance provides that only the following matters are considered to be “urgent”:

  • Urgent and time-sensitive motions and applications in civil and commercial list matters, where immediate and significant financial repercussions may result if there is no judicial hearing;
  • Outstanding warrants issued in relation to a Small Claims Court or Superior Court civil proceeding;
  • Matters related to Public Health and Safety and COVID-19 (for example applications by the Chief Medical Officer of Health, or certain applications related to the Health Protection and Promotion Act);
  • Family and child protection matters (such as urgent relief relating to the safety or well-being of a child, or dire issues regarding the parties’ financial circumstances);
  • Any other matter that the Court deems necessary and appropriate to hear on an urgent basis. These matters will be strictly limited.

An Updated Notice to the Profession was issued on April 2, 2020, which sets out an additional limited set of matters, beyond those identified as “urgent” which will be heard on a region-by-region basis. It is our understanding that non-urgent civil motions, for example, are being rescheduled to dates after August 2020. Proceedings in the Small Claims Court have also been temporarily suspended effective March 16, 2020. All Provincial Offences Act matters before the courts (including environmental prosecutions under provincial legislation) have been adjourned and will be rescheduled. Defendants can expect to receive a notice advising of the new date by mail.

In addition, an Emergency Order under s. 7.1(2) of the Emergency Management and Civil Protection Act has suspended the running of limitation periods in Ontario and has, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, suspended any period of time within which any step must be taken in any proceeding in Ontario established by a statute, regulation, rule, by-law or order of the Government of Ontario.

Subject to this Order, the Environmental Review Tribunal (ERT) has issued guidance on its website, indicating that in-person hearings are being rescheduled and that front counter services are closed. It has advised that in light of the Emergency Order, if parties (new or current) to a matter before the Tribunal are not able to meet a timeline, the Tribunal will grant extensions. However, the ERT is continuing to conduct teleconference or in writing hearings, mediations and case conferences. This is not surprising in light of the ERT’s normal practices, which include acceptance of electronic filing by case co-ordinators and teleconference hearings.

For further details on the impact on civil litigation in Ontario, see Gowling WLG’s COVID-19 resource page [link].

Some special considerations for those involved in environmental litigation at this time include:

  • Ensuring that environmental litigation matters move forward. Many environmental litigation matters that do not require a pending court appearance can continue as normal. Discoveries and mediations can be held via video conferencing applications, if appropriate. Experienced and practical counsel can work with opposing counsel to ensure that matters continue to move forward without court intervention, even in light of the COVID-19 pandemic.
  • Determining whether environmental litigation matters are urgent. Where an ongoing environmental litigation matter becomes urgent, counsel can help advise how to obtain an urgent motion or case conference based on the guidance from the courts. Where a new issue arises requiring court intervention, new Statements of Claim and Notices of Action can still be filed via the Superior Court of Justice e-filing system.

Municipal land use planning matters suspended

As municipalities themselves attempt to understand their roles and obligations amid the pandemic, many land use planning matters in Ontario have been delayed, suspended, or had a change in process.

Some municipalities are still accepting planning and development applications, but only by courier or by appointment. Others are only processing applications received before mid-March, or are only conducting building inspections of unoccupied sites. Still others have had to postpone the timeline for updating their Official Plan. These changes in process and timelines will affect many projects that are or otherwise would have been in development. With Ontario’s new Provincial Policy Statement set to come into force on May 1, 2020, this setback in timelines will have an effect on what policy will apply to a given proposal.

In addition, there has also been significant delays with respect to matters at the Local Planning Appeal Tribunal (LPAT). After originally announcing an adjournment of all matters scheduled between March 16 and June 30, 2020, the LPAT has recently reconsidered its options. Starting April 6, the Associate Chair of the Tribunal will decide on a case-by-case basis whether to lift the suspension to schedule settlement hearings via teleconference or written submission. Parties must submit a request form and, among other factors, must demonstrate how the principle of “social distancing” will be strictly adhered to throughout all steps required to present the settlement to the Tribunal.

The LPAT has indicated that it will continue to consider how it can proceeding with other hearing events via teleconference or in writing.

Some special considerations for those involved in municipal land-use planning matters, include:

  • Ensuring urgent matters are heard. Experienced counsel can assist in preparing submissions to the LPAT which may allow the matter to proceeding, particularly if it can be done in writing.

Gowling WLG and the Environmental Law team continues to follow changes to legal requirements and proceedings as a result of COVID-19.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.  It has been republished with the permission of Gowling WLG.  It was first published on the Gowling WLG website.

About the Authors

Jessica Boily is an environmental lawyer in Gowling WLG’s Toronto office. Her practice focuses on environmental litigation, drawing on her commercial litigation background to achieve successful and cost-effective outcomes. She uses her procedural expertise and technical knowledge to advocate for her clients.
Anna Côté is an associate lawyer in Gowling WLG’s Toronto office, practising in the areas of environmental law and land use planning law. She works with corporate, municipal, and Indigenous clients.
Mark Youden practises with  Gowling WLG’s Environmental, Advocacy and Indigenous Law groups. Mark is called to the bar in British Columbia, Alberta and Ontario and advises a wide range of clients on all aspects of environmental, Indigenous and regulatory law issues.
Gowling WLG
Alexei Paish practises with Gowling WLG’s Environmental and Advocacy Law groups, with a focus on Indigenous, regulatory and procedural matters. Alexei assists clients with a wide range of litigation issues, including energy-related litigation, contaminated sites, spills management, judicial reviews, quasi-criminal liability and environmental prosecutions.
Harry Dahme is a partner in Gowling WLG’s Toronto office and past leader of the firm’s Environmental Law Group. He has practised exclusively in the area of environmental law since 1984, and has a solid reputation as one of the foremost environmental lawyers in Canada.

To Sample or Not: U.S. EPA Issues Interim Guidance on Site Field Work During the COVID-19 Pandemic

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Written by Amy L. Edwards, Bonni F. Kaufman, and Meaghan A. Colligan,  and  Holland & Knight LLP

On April 10, 2020, the U.S. Environmental Protection Agency (EPA) Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) issued Interim Guidance on Site Field Work Decisions Due to Impacts of the COVID-19 Pandemic to all EPA Regional Administrators. The Interim Guidance outlines the factors that EPA Regional Offices should consider on a case-by-case basis to evaluate if cleanup actions should continue as is, be reduced or paused, as well as affirmative steps that EPA Regions must take depending on what decision they make. The Interim Guidance is applicable to Superfund cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substances Control Act (TSCA) PCB cleanups, cleanups under the Oil Pollution Act, the Underground Storage Tank (UST) program and EPA emergency responses to releases or substantial threats of releases (Response Actions) when EPA is the lead agency. The Response Actions may be performed by EPA, states, tribes other agencies of the federal government and potentially responsible parties where EPA is the lead agency.

EPA was clear that Regional Office decisions and follow-up steps must be made in accordance with EPA’s priorities to 1) protect the health, safety and welfare of the public, EPA staff and third-party environmental professionals, and 2) maintain EPA’s ability to respond to environmental emergencies and protect the environment (EPA’s Priorities). EPA indicated that adherence with federal, state, tribal or local health declarations and restrictions (Health Declarations), when possible, is integral to EPA’s Priorities. EPA was clear that no one factor outlined in the Interim Guidance should be considered in a manner that would override protection against unnecessary potential exposure to COVID-19. Furthermore, EPA indicated that Regional Office decisions to provide extensions or pause work obligations will not supersede or amend enforcement instruments.

When evaluating whether or not to continue, modify or pause a Response Action, EPA made clear that Regional Offices should closely consider whether or not the Response Action is addressing an imminent public health issue, such as access to clean drinking water or vapor exposure concerns, emergency spills, catastrophic events, disposals of certain wastes that may cause an imminent safety issue and in-progress decommissioning of former nuclear facilities and landfills. Applying EPA’s clear guidance that EPA’s Priorities must be at the forefront of the Regional Offices’ decisions, Holland & Knight does not believe the Regional Offices will permit any schedule alterations in these situations, so long as appropriate lodging and personal protective equipment is available for EPA workers or third-party contractors. In contrast, EPA may be more willing to approve schedule modifications for investigations that are part of long-term remedial actions that would not be completed in six months under ordinary circumstances, and remedial actions that do not address an immediate public health concern, i.e., the remedial action was already not scheduled to begin for at least one or two years regardless of any delays caused by the pandemic.

EPA indicated that Response Actions will not simply be abandoned without any controls. Rather, if Regional Offices decide that an action should be paused, Regions should continue to monitor the site and plan to resume field work as soon as it is safe to do so. If a Response Action will continue, Regional Offices must review and modify the health and safety plan (HASP) to ensure that it accounts for CDC’s COVID-19 guidelines and other Health Declarations.

EPA expects work that can be performed remotely to continue, such as completing investigation and cleanup reports, work plans, negotiations between parties, issuing decision documents, progress reports and maintaining compliance with financial assurance obligations.

Parties that believe a COVID-19 restriction will impact their obligations to perform any element of a Response Action are directed to consult the applicable enforcement instrument to review force majeure provisions and any provisions that outline the process for requesting schedule adjustments. Scheduling adjustments will be made on a case-by-case basis in line with EPA’s Priorities and the factors outlined in the Interim Guidance.

EPA indicated that it will update the Interim Guidance as the current situation evolves, as necessary.

Key Elements of the Interim Guidance

General Guidance for Response Field Work Decisions

EPA made clear that Regional Offices would continue to respond to releases or threats of substantial releases to the environment but that Regions should make every effort to ensure worker safety and compliance with travel restrictions, Health Declarations and access to personal protective equipment and lodging.

Under the Interim Guidance, Regional Offices are to perform an evaluation before deciding to continue, modify or pause Response Actions and pre-construction, construction and post-construction activities. In jurisdictions where Health Declarations have been issued, Regions are to evaluate the status of ongoing response work and the possible impact of the COVID-19 pandemic on sites, surrounding communities, EPA personnel and response/cleanup partners. In jurisdictions where Health Declarations have not been issued, Regions should weigh additional factors, including the safety and availability of work crews and EPA, state and tribal staff; the critical nature of the work; logistical challenges such as travel and lodging, and other factors particular to a site.

EPA indicated that Response Actions will not simply be abandoned without any controls. Rather, if Regional Offices decide that an action should be paused, Regional Offices should continue to monitor the site and plan to resume field work as soon as it is safe to do so. If a Response Action will continue, Regional Offices must review and modify the HASP to ensure that it accounts for CDC’s COVID-19 guidelines and other Health Declarations.

During the COVID-19 pandemic, EPA encourages parties and lead agencies to regularly communicate with EPA project managers about the status of the Response Actions and any anticipated challenges and mitigation measures. If COVID-19 restrictions impact a party’s ability to perform any Response Actions, that party should review the enforcement instrument, i.e., consent order, settlement agreement, etc., for the applicable provisions allowing for schedule adjustments or invocation of force majeure provisions. EPA project managers will promptly issue decisions about schedule adjustments on a case-by-case basis.

Factors to Consider for Site Field Work Decisions

EPA provided a list of situations in which Regions have decided and may continue to decide to modify or suspend Response Actions:

  • State, tribal or local health officials have requested suspensions.
  • Any site workers have tested positive for or exhibited symptoms of COVID-19.
  • Any sites where there may be close interaction with high-risk groups or those under quarantine.
  • Sites where contractor field personnel are not able to work due to a jurisdiction’s travel restriction or Health Declarations.
  • Other sites where social distancing is not possible.

EPA provides a list of factors that regional management should consider with respect to site-specific work decisions, including generally:

  • whether failure to continue the Response Action would likely pose an imminent and substantial endangerment to human health or the environment, such as emergency spill responses, catastrophic events, sites that impact drinking water or result in on-site exposures or vapor intrusion, disposals of certain wastes that may cause an imminent safety issue, and in-progress decommissioning of former nuclear facilities and landfills, and whether it is practical to continue the Response Action
  • whether maintaining Response Actions would lead to a reduction in human health risk/exposure in the next six months, such as vapor intrusion investigations, residential site work with current exposures to residents, and drinking water-related work
  • whether the work would not provide near-term reduction in human health risk, such as periodic monitoring, routine sampling activities and field sampling for remedial or facility investigations. In these instances, EPA is more likely to consider the possibility of a delay, suspension, or rescheduling of work and with updated HASPs as appropriate.

Effects on Non-Field Site Work

EPA expects work that can be performed remotely to continue, such as completing investigation and cleanup reports, work plans, negotiations between parties, issuing decision documents, progress reports and maintaining compliance with financial assurance obligations. EPA did recognize that laboratories and other supporting operations may be impacted by the COVID-19 pandemic and directed parties to follow procedures in those situations outlined in the applicable enforcement instrument.

Next Steps When Pausing Site Work

If a decision is made to pause work, EPA expects Regional Offices to continue to monitor site conditions, plan to resume field work when appropriate and utilize EPA’s internal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Interim Guidance on Public Engagement During COVID-19.

Conclusion

EPA has made it clear to the Regional Offices that they may approve a modification or pause of certain Response Actions, but not if the Response Action is in the process of addressing or will address an imminent or substantial threat to public health and the environment. EPA does, however, require the Regional Offices to balance any decisions with a close review of Health Declarations and exposure or any potential exposure to COVID-19 to the public, EPA workers, and contractors. Based on recent experience, EPA will not extend deadlines for deliverables such as work plans, reports or settlement negotiations based on COVID-19 that can be prepared remotely.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.

Information contained in this article is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

About the Authors

Amy L. Edwards is the co-chair of the Holland & Knight LLP’s National Environmental Team. She is a partner in the firm’s Public Policy & Regulation Group, which has been ranked among the top law and lobbying firms in Washington, D.C., by numerous publications. Ms. Edwards has been recognized as a leading environmental lawyer for several years by Chambers USA, Super Lawyers and Best Lawyers.

Bonni F. Kaufman is a partner in the Public Policy & Regulation Group of Holland & Knight, where she focuses her practice on environmental law. Ms. Kaufman represents clients in a wide variety of matters relating to environmental laws, focusing on regulatory enforcement and compliance, product regulation, litigation and environmental aspects of corporate and real estate transactions.

Meaghan A. Colligan is a Washington, D.C., environmental attorney and member of Holland & Knight’s Public Policy & Regulation Group. She focuses her practice in the areas of environmental, land use, energy and municipal law.

Canada: COVID-19 – Impact On Environmental Compliance And Due Diligence

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Written by Bryan J. Buttigieg, Miller Thomson LLP
As these strange times continue to evolve, it is important to ensure that all companies whose operations raise environmental compliance issues try to think through and plan for what might happen in the coming weeks and perhaps months. In particular, both self-imposed and regulatory quarantine protocols may have a significant impact on critical staff levels at a facility. While we are all deep into implementation of directives about working from home when we can, there are, of course, a number of essential jobs that require physical presence for a plant to operate properly.

Despite all the dramatic changes going on in our lives, all conditions of operating permits such as Environmental Compliance Approvals remain in full force, and all obligations such as spill prevention, spill remediation, spill reporting and regular compliance reporting continue to apply. It is never an excuse to say something happened due to a staff shortage. If there are insufficient resources to conduct an operation in full compliance of environmental obligations, there is an obligation to revise operating plans including if necessary, reducing production levels, rather than continuing business as usual in the expectation that regulators will somehow turn a blind eye to non-compliance.

Care needs to be taken to ensure that all safety and regulatory requirements continue to be met. Careful thought should be given as to what minimum staffing would be needed to keep a facility operating safely and in full compliance. Consideration will have to be given as to whether production changes are needed to reduce the risk of an undesirable incident due to unexpected staff shortages. There may, in turn, be impacts on supply chain and customer obligations. While cross border closures are not supposed to impact the movement of goods, what happens if border screening is in place and a driver with essential supplies is refused crossing? Consider communicating regularly with any spill response contractors who are on retainer or may be needed: Are they adequately staffed? Will they be in a position to respond if needed? If not, what other steps need to be taken? We are at the stage where these are becoming foreseeable events and as such planning is required in order to ensure as orderly and safe a transition as possible.

Consider creating a dedicated COVID-19 Environmental Compliance Team whose main purpose is to review all applicable environmental obligations and try to anticipate internal compliance risks in the event of reduced staffing levels. Ensure that if employees are asked to step into temporary roles due to the absence of others, proper training is given on all obligations including spill detection and reporting. Be prepared to make quick decisions and make changes as the situation evolves. Communicate decisions to all affected clearly and concisely and ensure there is a channel for employee feedback and comments as quite often, those in the field will be the first to identify practical difficulties with any changes to long standing work practices.

Proactive communication with the regulators might be a useful step to consider. While many government employees are also working from home, they continue to enforce regulatory obligations. Proactive communication with a local abatement officer might be a useful way to ensure there is awareness of any special steps you are taking and an ongoing dialogue to ensure any concerns raised by the regulator are addressed.

Similarly, industry organizations might have put some thought into protocols applicable to all members that would assist you in ensuring you are exercising the appropriate level of diligence. Consider the need for community communications with neighbours or neighbourhood groups at this stage.

As the current situation continues to develop, vigilance to ensure ongoing environmental compliance is going to remain of utmost importance in order to minimise any additional disruption to daily business operations beyond that being caused by events that cannot be controlled or foreseen.

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

Bryan Buttigieg is recognized as one of the leading practitioners of environmental law in Canada and is certified by the Law Society of Ontario as a specialist in Environmental Law. His practice includes a combination of litigation and transactional advice involving civil litigation and regulatory defence representation in environmental and occupational health and safety matters.

Guide to Community Actions that drive Brownfields Development

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The United States Environmental Protection Agency (U.S. EPA) recently developed a Guide to help communities with brownfields to
more successfully address community revitalization and brownfields-related challenges.  The guide outlines concrete actions communities can take to address these challenges.

Through the three case studies described in the Guide, it is shown that attracting public or private investment for the reuse of brownfield properties can bring economic and social benefits to communities, in addition to improving environmental conditions.

The Guide provides details of the five steps for successful brownfield redevelopment:

  1. Lead with stakeholder involvement that empowers the local community to become redevelopment champions.
  2. Create a site reuse vision that is exciting and realistic.
  3. Remove barriers to brownfield redevelopment (i.e., expediting zoning and permitting approvals).
  4. Engage developers and end-users.
  5. Complete site preparations and close the deal.

The Guide also discusses opportunities for obtaining brownfield grants and technical assistance.  The U.S. EPA provides grants and technical assistance to local, state and tribal governments and nonprofit organizations. As of February 1, 2019, these federal government investments in brownfield remediation projects have leveraged $27.527 billion in cleanup and redevelopment funding from public and private sources and resulted in the creation of over 144,800 jobs.