What Exactly Is Canada Doing About The Protection Of Our Environment?

Written by Paula Lombardi, Siskinds LLP

The Federal Government is required under the Federal Sustainable Development Act, S.C. 2008, c.33 (“Act1) to provide Canadians with a strategy as directed by the precautionary principle.

The precautionary principle is defined in section 2 of the FSDA, for implementing any thing, action or process to develop, improve and protect our environment of threats of “serious” or “irreversible damage”, regardless of lack of full scientific data, or cost-effective measures to prevent “environmental degradation”.

The FSDA was passed in June of 2008, and as statutorily required, the federal government implemented the first written objectives to Canadians in a report known as the “Federal Sustainable Development Strategy” (FSDS) for the years 2010 to 2013. The Act requires that the FSDS be updated every three (3) years by the Minister of the Environment based on the precautionary principle. The federal government’s fourth and most recent update is entitled “Achieving a Sustainable Future. A Federal Sustainable Development Strategy for Canada 2019 to 2022″ and was released on June 19, 20192 (the “2019-2022 FSDS”). Every Canadian including Indigenous organizations, non-governmental organizations, academics, businesses (large or small) are invited before the end of each reporting period to make comments on the draft report prior to its release. While the 2019-2022 FSDS report is complete, comments on the new report or ideas on implementation of its goals can be made on the federal government’s Commitments Board or by sending an email to [email protected].

As we enter a new decade, the re-elected liberal federal government will be working with Canadians to attain the thirteen (13) sustainable development goals by 2022. These goals include: lowering emissions; developing more green operations; preserving healthy coasts and oceans; growing clean technology; improving infrastructure; improving lakes and rivers; maintaining lands and forests; ensuring healthy wildlife; providing clean drinking water; creating sustainable food; connecting Canadians with nature; and, encouraging sustainable communities to live clean.

The question is whether these development changes really affect each Canadian? The answer is yes.

These development goals can only be achieved and sustained through action by individuals, the business sector and provincial governments. For example, in December of 2017, The Minister of the Environment and Climate Change Canada (“ECCC”) the Honourable Catherine McKeena stated: “Sustained action on Great Lakes restoration is key to the health and economic prosperity of citizens in this important region.”3 The ECCC gave close to $45 million in new funding to the Great Lakes Protection Initiative to take action on identified priorities (i.e. 2017 State of the Great Lakes Report). These priorities included reducing toxic and nuisance algae and harmful pollutants to restore water quality, and improving and protecting its ecosystem.

The creation of the Canada-Ontario Lake Erie Action Plan4 set out 120 actions to help reduce phosphorus entering Lake Erie. The City of Hamilton has contributed $14 million5 to the Randle Reef Sediment Project. Although this immense multi-year initiative remains on budget with the goal to be completed by 2022, it could only remain possible by the FSDA and application of the precautionary principle.

The 2019-2022 FSDS report is a free public document that all Canadians can easily access by downloading from the federal government website or visiting http://www.fsds-sfdd.ca/downloads/FSDS_2019-2022.pdf.

Footnotes

1 https://laws-lois.justice.gc.ca/eng/acts/f-8.6/page-1.html#h-240603

2 http://www.fsds-sfdd.ca/index.html#/en/intro/annexes#tabs

3 https://www.canada.ca/en/environment-climate-change/corporate/transparency/priorities-management/departmental-results-report/2017-2018/results.html#toc3

4 https://www.canada.ca/en/environment-climate-change/services/great-lakes-protection/action-plan-reduce-phosphorus-lake-erie.html#toc4

5 https://www.hamilton.ca/city-initiatives/our-harbour/budgets-and-fast-facts

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.


About the Author

Paula Lombardi is a partner of Siskinds LLP, and practices in the areas of environmental, municipal, regulatory and administrative law. Prior to joining Siskinds, Paula worked as an associate at a Bay Street law firm where her practice focused on occupational health and safety, environmental and regulatory matters.  Paula recently spent two years as in-house counsel for a major privately owned US corporation, whose owner is on the Forbes 500 list, and was responsible for all Canadian legal and business issues relating to the import and export of goods, transportation of hazardous materials, remediation of contaminated sites, construction of large infrastructure projects, regulatory compliance, NAFTA matters, and preparation of environmental assessments in the US and Canada.

 

Soil Contamination: Changing Perspectives on Road Salt

Written By Kyla Hoyles, P. Geo, QP, Premier Environmental Services Inc.

Road salt in Canada, especially where I’m from in Southern Ontario, is a daily part of our lives in the winter months. It keeps us safe and is applied to paved surfaces on most days when frozen precipitation is expected. From an environmental perspective, road salt leaches into our soils and can affect plant growth, and eventually to the groundwater where the sodium and chloride can be tasted in our drinking water. For that reason, it has been considered a soil and groundwater contaminant, and subject to site condition standards when completing environmental site assessment work.

In Ontario, this has been a tricky situation for many years, and I have had many clients ask me why their property value or development plans are being affected by the application of road salt to parking lots, walkways and road ways for safety purposes. I have sympathized because road salt use has been socially acceptable and relatively unregulated for so long, that treating this as a contaminant is counter- intuitive. But as a consultant and qualified professional (QP), there has been little I could do, particularly in situations where regulatory approvals such as a Record of Site Condition (RSC) were needed.

But there is good news on this front! On December 4, 2019, the Ontario Ministry of Environment, Conservation and Parks (MECP) amended O. Reg. 153/04 governing RSCs. Among a number of changes provided by this amendment, was the ability for QPs to consider elevated concentrations of road salt related parameters in soil and groundwater to not be exceedances if it is determined that the road salt was applied solely for the purpose of vehicular or pedestrian traffic safety under conditions of snow or ice. This does not pertain to bulk storage of road salt, or snow dumps.

This will simplify the RSC process for many properties, and hopefully allow many developments to proceed that were stalled due to unforeseen remedial or risk assessment costs. This regulatory amendment contained several other common- sense changes, and has been well received by many of us in the environmental consulting profession.


About the Author

Kyla is a professional geoscientist licensed in Ontario, Alberta and Manitoba. She has extensive consulting experience specializing in Phase I and Phase II Environmental Site Assessments, soil and groundwater remediation, risk assessment / risk management, and Designated Substance / Hazardous Materials Surveys and abatement. She has conducted, supervised, and trained staff on all stages of the environmental site assessment process, assessing hundreds of properties. In the process, Kyla has assisted a wide variety of clients by assessing risk related to property purchase and divestment, financing and re-development. Kyla is a Qualified Person for filing Records of Site Condition (RSC) as specified in O. Reg. 153/04 as amended.

Excess Soil Management Guideline in Ontario – Berkley Canada’s White Paper

The Ontario Ministry of the Environment, Conservation and Parks (MECP) has finalized the Excess Soils Management Framework, bringing comprehensive change to how excess soils are managed in Ontario. The Environmental Team at Berkley Canada (a Berkley Company) recently released a White Paper which helps summarize key parts of the Framework, discusses emerging liabilities for various stakeholders, and highlights potential mitigation tools.

The MECP’s Framework appears to have two strategic goals”

  1. Protect human health and the environment from inappropriate use of excess soils; and
  2. Encourage the beneficial reuse of excess soils.

The White Paper provides readers with a summary of the Framework (from an insurer’s perspective) along with easy access to the relevant supporting documents and helps readers identify new risks and potential risk transfer solutions associated with the Framework.

The White Paper would be of interest to Environmental Consultants, Remediation and Construction Contractors, Real Estate Developers, and Land Owners.

 

Forecast for U.S. Federal and International Chemical Regulatory Policy 2020

Bergeson & Campbell, P.C. (B&C®) and its consulting affiliate, The Acta Group (Acta®), recently released their Forecast for U.S. Federal and International Chemical Regulatory Policy 2020. In this detailed and comprehensive document, the legal, scientific, and regulatory professionals of B&C and Acta distill key trends in U.S. and global chemical law and policy, and provide our best informed judgment as to the shape of key developments we are likely to see in the New Year.

The forecast was prepared by the global team of professionals from the two firms. The core business of the firms are the law, science, regulation, and policy of chemicals of all varieties — industrial, agricultural, intermediate, specialty, and biocidal, whether manufactured at the bulk or nano scale, or using conventional or innovative technologies, including biotechnology, synthetic biology, or biobased.

The team that put together the forecast was comprised of scientists (seven Ph.D.s), including toxicologists, chemists, exposure experts, and geneticists; regulatory and policy experts; and lawyers is deeply versed in chemical law, science, and policy and our unique business platform seamlessly leverages and ensures the integration of law and science to achieve success at every level, and in all parts of the globe.

The table of contents for the forecast can be found below.

TABLE OF CONTENTS

I. UNITED STATES: CHEMICAL FORECAST

  1. INTRODUCTION
  2. TSCA
  3. FIFRA
  4. U.S. NANOTECHNOLOGY
  5. BIOTECHNOLOGY
  6. BRAG
  7. HAZARDOUS MATERIALS TRANSPORTATION
  8. TRADE
  9. PROP 65
  10. INGREDIENT DISCLOSURE
  11. FDA FOOD AND COSMETICS REGULATION
  12. OSHA, WHMIS, AND GHS

II. KEY GLOBAL CHEMICAL MANAGEMENT PREDICTIONS

  1. OECD
  2. SAICM
  3. EU
  4. UK/BREXIT
  5. BIOCIDES
  6. ASIA
  7. MIDDLE EAST
  8. UN GHS

APPENDIX A: B&C SPEECHES AND WRITINGS

APPENDIX B: B&C WEBINARS AND PODCASTS AVAILABLE ON DEMAND

APPENDIX C: GLOSSARY

 

U.S. EPA Issues the Latest Revision to the Risk Management Program (RMP) Chemical Release Rules

Written by Pillsbury Winthrop Shaw Pittman LLP

The United States Environmental Protection Agency’s (U.S. EPA’s) revised Risk Management Rules, designed to reduce the risk of the accidental release of hazardous chemicals, have been published in the Federal Register.  The citation to this action is 84 FR 69834 (December 19, 2019).  The rule is effective on December 19, 2019, but also provides for some staggered compliance dates for emergency response exercises and updating certain risk management plan provisions.  These revisions were triggered by EPA’s review of several petitions for reconsideration of EPA’s January 13, 2017 amendments to the rules set forth in 1996 at 40 CFR Part 68, which implemented the chemical accident preventions provisions required by Section 112 (r)  of the Clean Air Act.  Many of the 2017 requirements have been rescinded by this action.

On November 21, 2019, the U.S. EPA released a pre-publication copy of its Reconsideration of the revised Risk Management Program (RMP) Rules. In an accompanying statement, the agency noted that it has taken steps to “modify and improve” the existing rule to remove burdensome, costly and unnecessary requirements while maintaining appropriate protection (against accidental chemical releases) and ensuring responders have access to all of the necessary safety information. This action was taken in response to U.S. EPA’s January 13, 2017 revisions that significantly expanded the chemical release prevention provisions the existing RMP rules in the wake of the disastrous chemical plant explosion in West, Texas. The Reconsideration will take effect upon its publication in the Federal Register.

Background
As recounted by the D. C. Circuit in its August 2018 decision in the case of Air Alliance Houston, et al. v. EPA, in 1990, the Congress amended the Clean Air Act to force the regulation of hazardous air pollutants (see 42 USC Section 7412). An initial list of these hazardous air pollutants was also published, at Section 7412 (b). Section 112(r) (codified at 42 USC Section 7412 (r)), authorized the U.S. EPA to develop a regulatory program to prevent or minimize the consequences of a release of a listed chemical from a covered stationary source. The U.S. EPA was directed to propose and promulgate release prevention, detection, and correction requirements applicable to stationary sources (such as plants) that store or manage these regulated substances in amounts determined to be above regulated threshold quantities. The U.S. EPA promulgated these rules in 1996 (see 61 FR 31668). The rules, located at 40 CFR Part 68, contain several separate subparts devoted to hazard assessments, prevention programs, emergency response, accidental release prevention, the development and registration of a Risk Management Plan, and making certain information regarding the release publicly available.  The U.S. EPA notes that over 12.000 RMP plans have been filed with the agency.

In response to the catastrophe in at the West Plant, the U.S. EPA issued substantial amendments to these rules, covering accident prevention (expanding post-accident investigations, more rigorous safety audits, and enhanced safety training), revised emergency response requirements, and enhanced public information disclosure requirements. (See 82 FR 4594 (January 13, 2017).) However, the new administration at the U.S. EPA, following the submission of several petitions for reconsideration of these revised rules, issued a “Delay Rule” on June 14, 2017, which would have extended the effective date of the January 2107 rules until February 19, 2019. On August 17, 2018, the Delay Rule was rejected and vacated by the D.C. Circuit in the aforementioned Air Alliance case (see 906 F. 3d 1049 (DC Circuit 2018)), which had the effect of making the hotly contested January 2017 RMP revisions immediately effective.

Reconsidering the January 2017 Revision
On May 30, 2018, the U.S. EPA issued a notice of proposed rulemaking (see 83 FR 24850) to reconsider the reinstated RMP revisions and amendments, and the agency has now decided the issues raised in this rulemaking. Basically, it appears that the U.S. EPA is returning the rules to their pre-January 2017 stage and format. Over the years, these rules have been amended with some frequency, and the agency argues that these actions have all been discretionary once it finalized the basic 1996 version. Accordingly, it is acting well within its discretion to revise and rescind large portions of the 2017 amendments. Obviously, this is a complex regulatory program, but here are some highlights. The 2017 revisions to the Risk Management Program have been rescinded regarding safer technologies and alternatives analysis, third-party audits, incident investigations, and information availability. The U.S. EPA is also modifying regulations relating to local emergency coordination, emergency response exercises, compliance dates and public meetings. In addition, “this action rescinds almost all the requirements added in 2017 to accident prevention program provisions,” including again third-party audits. No longer will incident investigations be required to include a “root cause analysis,” or to consider a “near miss” that never resulted in an accidental release. The emergency response amendments are modified to allow facilities to share only that technical information necessary to implement the local emergency response plan. The agency and many commenters were concerned that the earlier rule risked the exposure of national security information. However, some of the 2107 changes to required public meetings have been retained. Finally, the U.S. EPA will establish new compliance dates to reflect these actions.

In the preamble, the U.S. EPA recognizes that the spate of recent chemical plant incidents has created concerns with these topsy-turvy regulatory proceedings. The agency points out that in several well publicized cases, these rules would not even have been applicable because the chemical release at issue was not a substance listed as a hazardous air pollutant in the statute or the implementing regulation, or in threshold quantities. Also, in the West fire and explosion, the Bureau of Alcohol, Tobacco Firearms and Explosives (ATF) believes that the cause was not an accident, but a deliberate act. Finally, the U.S. EPA argues that it is unfair to burden all covered plants with a complicated and costly regulatory program when it is clear to the agency that only a handful of chemical plants are the source of the great majority of complaints.

What’s Next?
With revised Risk Management Rules now published in the Federal Register, these actions will likely be subject to another judicial challenge. The U.S. EPA has made a strong case that it is acting well within its statutory authority and consistent with the Administrative Procedure Act. However, the challenges will be serious and substantial.

This article has been republished with the permission of the author.  It was first posted on the Pillsbury Winthrop Shaw Pittman LLP website.


About the Author

Anthony B. Cavender provides guidance and counseling relating to enforcement and compliance.  He has represented clients in Superfund matters, and in RCRA and Clean Water Act enforcement proceedings.  He is a Senior Counsel in the firm’s Houston office and a member of the Environmental & Natural Resources practice section. His practice focuses on the Clean Water Act, the Resource Conservation and Recovery Act and Superfund. Before joining Pillsbury, Anthony was a member of the legal department of Pennzoil Co., specializing in these areas as well as general corporate legal matters. He served on various energy industry committees and trade associations.

Ontario to promulgate Excess Soil Regulations

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.

 

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

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.

Ontario Government Proposes new rules around Administrative Monetary Penalties

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 ActPesticides 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.”

 

Company fined $564,000 for violating VOC limits in CEPA Regulations

An automotive parts supplier based in Quebec, Les Entrepôts A.B. inc., was recently fined a total of $564,000 after pleading guilty, on October 4, to three counts of contravening the Canadian Environmental Protection Act, 1999 and the Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations, which are part of the Act.

An investigation by Environment and Climate Change Canada (ECCC) enforcement officers revealed that the company had imported, offered for sale, and sold automotive refinishing products that contained volatile organic compounds in excess of the allowable limit. The company also failed to comply with an environmental protection compliance order issued by an enforcement officer, under the Canadian Environmental Protection Act, 1999.

The company received two fines of $125,000 for importing and selling the products, respectively, totaling $250,000, and a fine of $150,000 for failing to comply with an environmental protection compliance order. In addition to the fines on the three counts, the company received an additional $164,000 fine for financial gains. This amount represents the profits generated by the sale of non-compliant automotive refinishing products. The total fines will be directed to the Environmental Damages Fund.

In addition, the judge ordered the confiscation and destruction of the automotive refinishing products seized at the company’s expense, as well as the publication of an article in Le Carrossier magazine (Autosphere.ca) within six months. The article must contain the facts of the offence and the details of the sentence.

As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.  The Environmental Offenders Registry contains information on convictions of corporations registered for offences committed under certain federal environmental laws.

Volatile organic compounds are primary precursors to the formation of ground-level ozone and particulate matter, the main components of smog. Smog is known to have adverse effects on human health and the environment.

It is estimated that over 5 kilotonnes of VOCs are emitted each year from coatings and surface cleaners used in automotive refinishing operations in Canada. The Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations are expected to reduce the annual VOC emissions from these sources by approximately 40%.

The Automotive Refinishing Products Regulations set concentration limits of volatile organic compounds for 14 categories of automotive refinishing products identified in the schedule of the regulations.

The Regulations are aligned with limits set by the California Air Resources Board suggested control measure (CARB SCM) for automotive refinishing products. During regulatory development, it was determined that the greatest potential reduction in Canada would be achieved by establishing VOC concentration limits similar to the CARB SCM. Other jurisdictions in the United States, as well as the European Union, have either already established similar limits or are considering them. Therefore, aligning the Regulations will facilitate consistency across North America, provide a level playing field to manufacturers and importers of automotive refinishing products, and provide consistent treatment across jurisdictions.

 

Ontario Environmental Protection Act and Regulatory Changes: More Brownfields Open for Business

Written by F.F. (Rick) Coburn and Barbora Grochalova, Borden Ladner Gervais LLP (“BLG“)

On May 2, 2019, the Government of Ontario introduced Bill 108, the More Homes, More Choice Act, 2019. Bill 108 makes several amendments to the Environmental Protection Act (EPA), such as enhancing the enforcement powers available to the Ministry of the Environment, Conservation and Parks (the Ministry), and broadening the scope of use of administrative monetary penalties.

The Ministry has also proposed amendments to the Records of Site Condition Regulation (O. Reg.153/04, Brownfields Regulation), with the stated purpose of enhancing the economic viability of brownfield projects by reducing delays, enhancing clarity, and providing certainty for redevelopment. The proposed regulatory amendments are provided on the Environmental Registry.

Brownfields and Redevelopment

Brownfields are properties that have become contaminated as a result of prior industrial or commercial use. Brownfield properties are often left vacant or underutilized, and may be located in areas where redevelopment would otherwise be desirable.

The Brownfields Regulation governs the process of redevelopment of contaminated properties and converting them into more sensitive types of use. Part XV.1 of the EPA only allows the change of use of a property from those that are potential sources of contamination to the types of use that are more sensitive (e.g., residential, agricultural, community, or institutional use) upon first completing and filing a Record of Site Condition (RSC). An RSC summarizes the environmental condition of the RSC property, describes any contaminants that are found to exceed the applicable standard, and reports any remediation measures that were done, including the removal of contaminated soil from the RSC property.

Proposed Exemptions to the Requirement to File a Record of Site Condition

The proposed regulatory amendments exempt certain redevelopment from the requirement to file an RSC.

  • Low-rise buildings changing from commercial or community use to a mixed use adding either residential and institutional use would be exempt, as long as the residential and institutional use is limited to floors above the ground floor. This exemption would only apply to properties that have never been in industrial use, or as a garage, a bulk liquid dispensing facility, a gas station or a dry cleaning operation, and if the building envelope will not be changed during the redevelopment.
  • Properties which are not otherwise included in the exemption described above may be exempt in situations where a part of a building is already in residential or institutional use and another part is used for commercial or community use, and the property is converted for a more sensitive use. This exemption would similarly be applicable only to properties that have never been in industrial use, or as a garage, a bulk liquid dispensing facility, a gas station or a dry cleaning operation, and the building envelope will not be changed during the redevelopment.
  • The definition of community use is proposed to be amended by removing from the definition temporary roads that are required only during the early phases of construction. The effect of this change is that an RSC would not be required once the temporary roads are converted to residential use when the buildout is completed.  
  • The conversion of indoor places of worship to residential use is also proposed to be exempt from the requirement to file an RSC.
  • Indoor cultivation of crops using hydroponics or other cultivation methods that do not rely on soil from the property is proposed to be defined as industrial use, as opposed to the more sensitive agricultural use, if the building was previously in industrial, commercial, or community use.

Additional Situations Deemed not to Exceed the Standard

The brownfields regime requires that if the RSC property is contaminated, the concentrations of each contaminant must be sampled and evaluated against the generic site condition standard. If certain contaminants exceed the applicable standard, the owner of the RSC property must either undertake further remediation, or prepare a risk assessment that provides a site-specific plan to address the risk posed by the exposure to those substances.

The Brownfields Regulation already included a provision by which exceedances resulting from the application of road salt or other de-icing substances were deemed to be within the standard. The deeming provision was previously restricted only to road salt use on a highway by the Ministry of Transportation and road authorities, but that restriction would be removed by the proposed amendments. Three new situations are proposed to be added where exceedances on any property are deemed to meet the standard:

  • Exceedances resulting from a discharge of treated drinking water;
  • Exceedances in fill material where a contaminant exceeds the applicable standard but does not exceed the naturally occurring concentration typically found in the area; and
  • Exceedances that arise from the deposit of excess soil onto the subject property, if the concentrations are in accordance with the standards established as part of the proposed On-Site and Excess Soil Management Regulation. (This proposed regulation would establish a comprehensive excess soil management regime, and will be discussed in more detail in a future update.)

Reduced Requirement to Delineate Contaminants

The Brownfields Regulation prescribes the requirements for phase one and phase two environmental site assessments. One of the elements required of a phase two study has previously been the full delineation, vertically and laterally, of contaminants which exceed the applicable site condition standards.

The proposed amendments introduce a “non-standard delineation”, which would not require the delineation of the full extent of a contaminant on the phase two property in situations where a risk assessment for that property has been accepted by the Ministry. The phase two study must instead show that appropriate steps have been taken to locate the maximum concentration of each contaminant found on the property, and that any additional efforts to delineate the contaminant are unlikely to contribute significant or meaningful information.

The proposed amendments to the Brownfields Regulation also introduce other technical changes to how phase one, phase two, risk assessment and other environmental studies are to be completed.

While the Brownfields Regulation are not part of Bill 108, these proposed amendments are an important piece in the larger landscape of changing environmental and land-use laws in Ontario. The majority of the amendments are proposed to come into force on the day the regulation will be filed. The proposed regulatory amendments are provided on the Ontario Environmental Registry.


About the Authors

Rick Coburn is a partner in the Toronto office of Borden Ladner Gervais LLP. Rick practises in the area of environmental law with an emphasis on environmental aspects of major development initiatives and transactions involving heavy industry, transportation, energy and infrastructure projects. With members of BLG’s litigation practice groups, he also acts as defence counsel on regulatory prosecutions and in civil actions.

Barbora Grochalova

Barbora Grochalova is an associate in the Environmental, Municipal, Expropriation and Regulatory Group in our Toronto office. Barbora is member of the Canadian and Ontario Bar Associations and acted as Counsel for the Canadian Environmental Law Association prior to joining BLG. She has had exposure to many different areas of law, with a focus on environmental, administrative, and regulatory matters before the Ontario Municipal Board (OMB) and the Environmental Review Tribunal (ERT).