PFAS – EPA Interim Guidance on How to Say Goodbye to Your “Forever Chemicals”

Written by Janessa GlennDawn LamparelloSteve Morton, and Cliff RothensteinK&L Gates LLP

In response to Congressional direction in the National Defense Authorization Act for Fiscal Year 2020, Public Law No: 116-92, on 18 December 2020, the Environmental Protection Agency (EPA) issued “Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances” (Interim Guidance) as part of its continuing efforts to regulate the large body of perfluoroalkyl and polyfluoroalkyl substances, collectively referred to as “PFAS.” SeeInterim Guidance.

EPA issued the Interim Guidance, not as a rulemaking or policy statement, but to provide current scientific information on disposing of or destroying PFAS and PFAS-containing materials. PFAS are often referred to as the “forever chemicals” because they do not break down easily or quickly in the environment. Thus, they present a unique challenge for disposal/destruction. The Interim Guidance outlines three methods that may be effective and are currently available for disposal or destruction—landfill disposal, underground injection disposal, and thermal treatment for destruction (incineration)—and discusses the data gaps and challenges for each, along with noting the need for further research into these methods for future guidance. EPA intends for this information to inform the decision making process of those managing the destruction/disposal of this material.

PFAs are used in fighting fires

The Interim Guidance identifies six waste streams that commonly contain PFAS:

  1. Aqueous film-forming foam (used in fire suppression);
  2. Soil (directly through land application or spills, or indirectly through particles released from stack emissions, for example) and biosolids (the Interim Guidance refers to the definition in 40 C.F.R. Part 503 for “sewage sludge,” also called “biosolids”);
  3. Textiles, other than consumer goods, treated with PFAS;
  4. Spent filters, membranes, resins, granular carbon, and other waste from water treatment;
  5. Landfill leachate containing PFAS; and
  6. Solid, liquid, or gas waste streams containing PFAS from facilities manufacturing or using PFAS.

Congress specifically identified these six areas in the National Defense Authorization Act for Fiscal Year 2020 as the waste EPA was required to address through issuance of the Interim Guidance. As a result, while EPA recognizes the information could be useful to other PFAS and PFAS-containing materials, the Interim Guidance only covers these six materials.

The Interim Guidance addresses the three disposal and destruction techniques currently used by industry discussed above: landfill disposal, underground injection disposal (liquid phase only), and thermal treatment for destruction (incineration). None is favored or rejected by EPA. However, as EPA clearly recognizes, the science behind potential migration of PFAS and PFAS-containing chemicals into the environment during any of these three disposal/destruction methods is still in its infancy. Accordingly, the Interim Guidance recognizes that in some cases it may be best to store PFAS and PFAS-containing materials for a period of two to five years while scientific advances in this area are made.

EPA’s inclusion of destruction in commercial incinerators, cement kilns, and lightweight aggregate kilns in the Interim Guidance was not surprising. EPA acknowledged data gaps related to temperatures, residence times, and emission characterization data. EPA had planned an experimental burning in a New Jersey incinerator to learn more about how PFAS reacts to incineration; however, that test was canceled due to vocal objections by environmental groups concerned about potential resulting air pollution. The New Jersey Department of Environmental Protection said protestors misunderstood the testing, thinking PFAS-containing firefighting foam shipped from New York would be burned, when in truth the experiment involved burning CF4, a chemical with similar bonding properties to PFAS chemicals, but that is considered a safe, nontoxic surrogate compound to PFAS.

EPA has pledged to move forward over the next three years with its efforts to further study thermal destruction of PFAS, but individual states are acting in the meantime. New York adopted a state law banning incineration of PFAS-containing aqueous film-forming foam. The PFAS Waste Incineration Ban Act of 2019 (H.R. 2591) was introduced during the 116th Congress but was not adopted into law. The bill would have not only banned the incineration of PFAS-containing firefighting foam, but would also have required EPA to identify and then ban incineration of other wastes containing PFAS. It is unclear whether such legislative actions will be a priority going forward.

The Interim Guidance is just one part of EPA’s larger PFAS Action Plan. The Biden administration is expected to aggressively continue EPA’s current work on the items listed in that Action Plan, including setting maximum contaminant levels for PFAS in drinking water and designating certain PFAS as CERCLA hazardous substances. Congress is also expected to push for PFAS legislation such as the PFAS Action Act, which among other things would designate PFAS as a CERCLA hazardous substance and mandate the promulgation of a national primary drinking water standard.

Public comment on the Interim Guidance is invited and closes on 22 February 2021. Comments must include Docket ID No. EPA-HQ-OLEM-2020-0527 and can be submitted at: Public Comment (preferred method) or by mail or hand delivery.

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About the Authors

Janessa Glenn is counsel at the K&L Gates LLP‘s Austin office where she concentrates her practice on a variety of administrative law issues, environmental regulatory issues, and environmental litigation. Janessa practices both before state agencies, including contested case proceedings, and in state court related judicial review of agency decisions.

Dawn Lamparello concentrates her practice in environmental law, including related regulatory compliance and litigation concerning various federal and state environmental statutes. Dawn counsels clients in connection with CERCLA site studies and remedies, as well as RCRA waste management issues, across the United States.

 Steve Morton is a partner in the firm’s Austin office. He has 34 years of experience obtaining necessary environmental permits, defending government or third-party claims before administrative agencies and courts, and assisting clients on regulatory and statutory developments before administrative agencies and the Texas Legislature.

Cliff Rothenstein is a government affairs advisor in the firm’s public policy and law practice in Washington, D.C. He brings more than 30 years of expertise developing and executing federal environmental and transportation legislation, policies, and regulations.

 

Ontario dry-cleaning company fined $10.5K for violations

Mega City 1 Hour Cleaners, located in east Toronto, recently pled guilty to two charges under the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations, made pursuant to the Canadian Environmental Protection Act, 1999. The company was fined $10,500 which will be directed to the Government of Canada’s Environmental Damages Fund.

On September 30, 2020, 9626735 Canada Inc. (doing business as Mega City 1 Hour Cleaners), located in Scarborough, pleaded guilty in the Provincial Court of Ontario, to two charges under the

In addition to the fine, Mega City 1 Hour Cleaners (registered in Canada as 9626735 Canada Inc.) was issued a 12-month probation order that proof of payment be provided on three outstanding contravention tickets totalling more than $1,800. Two tickets were for the failure to file annual reports for 2014 and 2015, and the third for the unlawful storage of wastewater. The tickets were issued under the Provincial Offences Act by Environment and Climate Change Canada (ECCC).

In November 2017, Environment and Climate Change Canada enforcement officers conducted an inspection at the Mega City 1 Hour Cleaners in Toronto. Officers found one container of wastewater that exceeded the 12-month storage timeframe permitted under the regulations. Officers also determined that an Annual Report for the 2016 calendar year had not been submitted to ECCC as required by the regulations.

Tetrachloroethylene, commonly known as PERC, is used as a dry-cleaning solvent and is listed as a toxic substance under the Canadian Environmental Protection Act, 1999.  The storage of hazardous waste can pose a threat to the environment and human health, through risk of accidents, spills or leaks. The Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations minimize these risks by imposing the regular removal of waste.

If PERC is released into the air, it can damage plants. Improper handling of PERC and PERC-containing waste can also contaminate ground water.

 

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

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

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

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

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

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

Two Quebec Companies fined for violations of Canada’s PCB Laws

Two companies based in Quebec were recently fined a total of of $75,000 after each pleaded guilty to a charge of breaching the PCB Regulations made under the Canadian Environmental Protection Act, 1999.

The first company, 150 Montréal-Toronto Inc., was fined $50,000 after pleading guilty to the non-compliant storage of PCBs between February 20, 2015, and January 30, 2018, in breach of paragraph 19(1)(b) of the PCB Regulations.

The second company, Recydem Enviro Inc. was fined $25,000 after pleading guilty to failing to send the PCBs for destruction to an authorized facility on or about March 19, 2016, as stipulated in paragraph 19(1)(a) of the PCB Regulations.

PCBs have been widely used for decades, particularly to make coolants and lubricants for certain kinds of electrical equipment, such as transformers and capacitors. PCBs are toxic, and steps have been taken under the Canadian Environmental Protection Act, 1999 to control the use, importation, manufacture and storage of PCBs, as well as their release into the environment.

As a result of this conviction, the companies’ names will be listed in the Environmental Offenders Registry.

 

 

Ontario: Proposal to Provide Additional Flexibility for Excess Soil Reuse

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

Proposal details

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

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

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

If the proposed changes are adopted, they would:

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

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

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

Deadline for Public Comment

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

Ontario: Discussion paper on modernizing hazardous waste reporting

The Ontario Ministry of the Environment, Conservation and Parks (MECP) recently announced that it received 76 comments on its “Modernizing Hazardous Waste Reporting in Ontario” discussion paper.

The MECP made changes to the Resource Recovery and Circular Economy Act (RRCEA), and the Environmental Protection Act (EPA) in Fall 2019, which allow the RPRA to provide digital reporting services, fee setting and collection for a wider range of waste and resource recovery programs.

The MECP issued a written letter of direction instructing the RPRA to prepare to deliver a digital reporting service for the Hazardous Waste program. The new hazardous waste digital reporting service would align with the open for business red tape reduction strategy by making it easier for the regulated community to track and report on waste.

Comments contributed to the proposed regulatory amendments and new proposed regulation and the MECP will continue to consider these comments as they take steps to update the Registration Guidance Manual for Generators of Liquid Industrial and Hazardous Waste and transition to the new digital reporting service.

Proposed Regulatory Changes

1. Amend Regulation 347 under the EPA to transition the delivery of hazardous waste digital reporting services to the RPRA

A. Transition delivery and operation of the hazardous waste digital reporting service

The MECP is proposing to amend Regulation 347 under the EPA to require the regulated community (including waste generators, carriers and receivers) to report waste management information to the RPRA instead of to the MECP, as they currently do. This would enable the RPRA to deliver and operate the hazardous waste digital reporting service, including collecting reports and fees from the regulated community.

B. Change registration and reporting requirements to support electronic service delivery

The amendments would also include changes to registration and reporting requirements to support a fully electronic reporting service. The new digital reporting service is intended to replace www.hwin.ca and paper document submissions.

Annual registration

The MECP is proposing to remove the annual registration renewal requirement (currently between January 1st to February 15th) and only collect information from generators at the time the business has a waste management activity to report (i.e. onsite storage/disposal/processing, or offsite movement of subject waste).

This would mean that businesses would complete an initial waste management activity report when they are reporting their first activity (using the new registry for the first time).

To ensure ongoing accuracy with facility, contact and payment information, the RPRA would require that businesses review and update their initially reported information when they are ready to report their first waste management activity after 365 days from the last time they reviewed and confirmed this information.

Reporting requirements

The MECP is proposing to amend Regulation 347 to provide more clarity about what waste management activities need to be reported to the RPRA and when they need to be reported. Reportable activities include both onsite and offsite management of subject waste and would remain the same. Reporting requirements for the Hazardous Waste program would be consolidated into one section.

The following activities would continue to be reportable waste management activities under the Hazardous Waste program:

  • Offsite management:
    • prior to completing the first off-site shipment of a subject waste
  • Onsite management:
    • within 90 days of generating and storing a subject waste where such waste is to be temporarily stored for more than 90 days and less than two years
    • prior to processing a subject waste onsite with the applicable Environmental Compliance Approval
    • prior to disposing of a subject waste onsite with the applicable approvals
    • prior to storing a subject waste for longer than two years with a valid Environmental Compliance Approval

Businesses that generate subject waste would be required to report their activities on, or prior to, the date that the activity takes place or within 90 days of generating or temporarily storing the subject waste if no other waste management activity has taken place. No generator of subject waste would be permitted to store subject waste for a period of greater than 90 days without reporting an activity to the RPRA. No generator would be permitted to manage such waste without reporting the activity to the RPRA.

In the near term, the ministry’s approach is to ensure that the proposed amendments would support the continued use of paper manifesting as an alternative to electronic reporting through the RPRA’s Registry, in a manner similar to that currently provided for under Regulation 347. Such reporting would continue to be provided directly to the ministry (director).

Report Completion

The MECP is proposing to amend Regulation 347 to clarify that reporting information would not be accepted in the new hazardous waste digital reporting service unless:

  • The entire waste management activity report is completed in a manner consistent with the requirements of the Regulation.
  • Any applicable fee payable by the generator is paid by or on behalf of the business.

This is intended to ensure that all members of the regulated community provide accurate information, on a timely basis and that they are paying for the subject waste that they generate in a timely manner.

Delegating Authority

The MECP is proposing that the new hazardous waste digital reporting service would allow delegates to register, report, and pay fees on behalf of generators. The generator would remain responsible for the subject waste that they generate and the information that is reported on their behalf. The RPRA would be responsible for ensuring confidential business information remains protected. The MECP is proposing to amend Regulation 347 to include a definition for ‘Delegate’ that would clarify this role.

The ability to delegate authority would provide flexibility for businesses (waste generators) to comply with the new hazardous waste digital reporting service, and ensure that the most accessible, knowledgeable and capable individuals are able to act on behalf of a business, should it be needed.

Paper-based reporting

The rules for paper-based reporting would remain the same in Regulation 347 because there is still a possibility that paper documents could be used in certain circumstances. In situations where paper manifests are used, businesses would continue to be required to ensure their manifest travels with the waste and applicable filing requirements are met with the ministry.

C. General housekeeping amendments to provide more clarity

The MECP is proposing to amend Regulation 347 to make various minor changes to provide more clarity and ensure consistency with other regulations.

Align with Federal regulatory phrases

Aligning with Federal regulatory phrases under the Transportation of Dangerous Goods Act(TDGA) would make it easier for businesses to learn and comply with both federal and provincial rules.

  • Align with the Federal phrasing in the TDGA by replacing “packaged” to “means of containment”.
  • The word “issued” should be removed when referencing TDGA manifests – because TDGA no longer “issues” manifests.
Definitions

Changes are needed to some existing definitions to provide more clarity for the regulated community.

  • The ‘field operation’ definition would be amended to clarify that specific medical clinics (blood donation/vaccinations and flu clinics) are included in the definition. This would reduce burden as these sites will not need to register and manifest at every site.
  • The ‘empty pesticide container’ definition would be updated to match the definition in Pesticides Act to help clarify and align with existing requirements.
  • The ‘reactive waste’ definition would be updated to correct a grammatical error and make it clear that the definition of reactive waste contains an independent list of criteria and not a multi-checklist of requirements. For example, if the waste meets any one criterion in the list, then it meets the reactive waste definition.
  • Both the ‘ignitable waste’ and ‘reactive waste’ definitions would be updated to align with the actual federal titles.

Some new definitions (i.e. RPRA, Registrar, Registry) would be needed so that the RPRA can deliver and operate the new hazardous waste digital reporting service. These definitions would have the same meaning as in the RRCEA. Other defined terms may also be required or desirable.

2. Create a new regulation under the RRCEA to carry over fee exemptions for certain activities related to hazardous waste – the RPRA would be required to consider the exemptions when setting program cost recovery fees.

The MECP is proposing a new regulation under the RRCEA that would carry over fee exemptions for certain activities related to hazardous waste from Regulation 347. The RPRA would be required to consider these exemptions, which would be based on the current exemptions when setting fees to recover the full cost of the Hazardous Waste program.

All fee setting references in Regulation 347 would be revoked when the new hazardous waste digital reporting service is implemented because the RPRA would have the responsibility to set and collect fees. The RPRA would be required to consult with stakeholders prior to establishing or amending fees for 45 days and post these fees on their website.

Read about and comment on the related proposed new regulation under the RRCEA.

Maintain government oversight for the hazardous waste program

Government would continue to play an important and on-going role in protecting the health and safety of the people of Ontario, and the environment. With respect to the Hazardous Waste program, the ministry would maintain compliance and enforcement, and program and policy oversight activities.

The RPRA would be responsible for operating the hazardous waste digital reporting service to ensure reports are complete and related fees are collected. The RPRA would also notify the ministry of any suspected non-compliant activities. All incidents of non-compliance with program requirements would continue to be followed-up on by the ministry.

The ministry would continue to ensure all generators, carriers, and receivers are complying with requirements under the EPA and Regulation 347 to safely store, transport, process, and manage subject waste in Ontario. The ministry would continue to do this by conducting compliance inspections and following up on reported incidents of improper management of waste. The ministry would also continue to enforce program requirements through investigations and prosecutions.

Benefits of the new digital reporting service

A new digital reporting service for the Hazardous Waste program, would make reporting simpler, faster and more cost-effective. This change would also help us to meet our goals to:

  • Go digital – Implementing a modern digital reporting service that replaces the existing paper-based manifest program would improve our existing service and knowledge base, making it easier to report activities related to subject waste (i.e. hazardous waste and liquid industrial waste as defined in Regulation 347).
  • Hold polluters accountable – Implementing a modern digital reporting service would allow for more effective and timely compliance monitoring and enforcement actions.

Improved electronic data tracking and reporting would provide the regulated community and the ministry with an important set of tools that reduce administrative burden, saving time and money. For example, the service would:

  • Reduce unnecessary manual data entry.
  • Reduce the amount of time and money businesses spend preparing and mailing paperwork to the ministry, correcting administrative errors on paper, or searching for missing paperwork.
  • Provide the ministry with more accurate and timely information to inform decision making and policy development.
  • Allow the ministry to focus on risk-based compliance and enforcement to ensure subject waste is appropriately managed.

This new hazardous waste digital reporting service would align with Ontario’s Digital Service mandate by eliminating outdated approaches to processes, such as reporting using the existing online system (i.e. Hazardous Waste Information Network – HWIN) and using the more burdensome paper-based submission processes (e.g. paper manifests) that prevent the delivery of people-centered services.

The new hazardous waste digital reporting service would align with the Made-in-Ontario Environment Plan by modernizing the way that the regulated community tracks and reports on subject waste (i.e. hazardous waste and liquid industrial waste as defined in Regulation 347 of the EPA). A better digital reporting service will enable more efficient and timely compliance monitoring and enforcement actions, which would provide assurance for Ontarians that polluters are held accountable, and subject waste is being appropriately and safely managed.

 

Montréal company fined $260,000 for violations of Canada’s PCB Regulations

On September 1, 4422236 Canada Inc. was fined $260,000 after pleading guilty to two counts of violating the PCB Regulations and the Canadian Environmental Protection Act, 1999.

An investigation conducted by Environment and Climate Change Canada (ECCC) enforcement officers revealed that 4422236 Canada Inc., owner of the Baltex Building (in Montréal), was using a transformer containing polychlorinated biphenyls (PCBs) at a concentration greater than 500 ppm, in September 2018. The investigation also found that, as of June 2019, the company had not complied with the environmental protection compliance order issued by an enforcement officer in November 2018, requiring it to dispose of the transformer.

PCBs have been widely used for decades, particularly as refrigerants and lubricants for certain types of electrical devices like transformers and capacitors. PCBs are toxic, and measures under the Canadian Environmental Protection Act, 1999 have been taken to control their use, import, manufacture, storage, and release into the environment.

 

COVID-19 Delays Ontario’s New Excess Soil Regime

Written by Gabrielle K. Kramer , F.F. (Rick) Coburn and Barbora Grochalova, Borden Ladner Gervais LLP
Ontario’s comprehensive excess soil management regime was set to be phased in starting July 1, 2020, much to the anticipation of the land development industry, municipalities, landowners, and consultants. The implementation of the first phase of the new excess soil regime is now pushed back to January 1, 2021, due to the COVID-19 outbreak.

What you need to know

  • The On-Site and Excess Soil Management Regulation (Excess Soil Regulation) creates new obligations for persons ultimately responsible for projects involving the excavation of soil, including any site alteration, construction of a building or infrastructure, or sediment removal.
  • The Excess Soil Regulation was filed on December 4, 2019, and is set to come into effect in a phased approach, beginning on July 1, 2020.
  • Supporting consequential amendments were made at the time to the Records of Site Condition Regulation (O. Reg. 153/04), General: Waste Management (Regulation 347), and the Waste Management Systems EASR Regulation (O. Reg. 351/12), all under the Ontario Environmental Protection Act.
  • Ontario Ministry of Environment, Conservation, and Parks (MECP) provided notice on June 12, 2020, delaying the provisions that would have come into effect on July 1, 2020, until January 1, 2021. The current waste regulatory framework will continue to apply until that time.
  • The implementation of the consequential amendments to other regulations, which relate to the first phase of changes, are also delayed.
  • The timing of the next phases of the implementation of the Excess Soil Regulation remain unchanged.

Important features of the new excess soil management regime

Construction and other excavation activities in Ontario generate an estimated 25 million cubic metres of excess soil annually, which is generally classified as “waste”. Currently, excess soil is transported and disposed of at landfill sites at significant cost, re-used on or offsite under uncertain conditions, or, occasionally, illegally dumped.

The aim of the changes to the excess soil management regime is to provide certainty in how excess soil is to be characterized, and clarify the conditions pursuant to which soil may be reused on-site, or transferred to another site for re-use. One of the goals of the new regime is to encourage the reuse of excess soil that meets prescribed standards, and limit the impacts to the environment, community health, and transportation infrastructure.

The new regime will also seek to enhance certainty for parties that choose to accept excess soil, as well as the consultants, haulers, and developers involved in transporting excess soil, by establishing testing requirements, and a system for tracking and registration of soil shipments.

Excess Soil: from waste to reuse for a beneficial purpose

The Excess Soil Regulation allows soil to not be designated as waste if all of the prescribed conditions are met, including:

  • The soil is directly transported to a reuse site from a soil storage site, a soil-processing site, or a project area. The regulation broadly defines “project” to include any project that involves the excavation of soil;
  • The operator of the reuse site has consented in writing to the deposit of the excess soil;
  • The quality and quantity of the soil meets the prescribed standards according to the MECP guidance document entitled “Rules for On-Site and Excess Soil Management”;
  • The excess soil will be used for a “beneficial purpose.” This term is not defined in the regulation, but examples given in connection with development are backfill for excavation, final grading, and achieving the necessary grade for a planned development or infrastructure project.

The provisions of the Excess Soil Regulation that govern the designation of excess soil are part of the first phase of implementation that is now set for January 1, 2021.

Responsibilities of the “Project Leader”

The Excess Soil Regulation places responsibility for excess soil onto the person or persons “who are ultimately responsible for making decisions relating to the planning and implementation” of the project which is the source of the excess soil.

The project leader will be required to ensure a Qualified Professional will implement a soil sampling and analysis plan, and prepare a soil characterization report as well as other documentation obligations. A tracking system must then be implemented to track each load of soil as it is transported from the project area to the reuse site. The Regulation will also establish a public registry where the project leader will be required to publish a notice before removing the soil, subject to certain exemptions. This next phase will come into effect on January 1, 2022.

The final phase to be implemented is the restrictions on landfilling of specified excess soil, which is set to come into effect on January 1, 2025.

Extensive changes underway despite delay

The new excess soil management regime will alter the way risk is allocated amongst those involved in construction projects and soil reuse sites at the same time as it may reduce development costs and environmental impacts associated with shipping excess soils. While soil management contracts that are entered into before January 1, 2021, will be grandfathered until 2026, project leaders and consultants will benefit from ensuring their business is ready for the new world of soil assessments and tracking systems.

This article was republished with the permission of BLG.  BLG retains the copyright. 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 Authors

Gabrielle K. Kramer provides environmental risk management strategies to both public and private clients, directing complex environmental claims, advising on new and historic losses, defending regulatory proceedings and advising on transactions. Gabrielle also advises on related insurance issues, municipal law, expropriations law and real estate issues having acted as counsel in numerous cases.

F.F. (Rick) Coburn practises environmental law with an emphasis on environmental aspects of major development initiatives and transactions involving heavy industry, transportation, energy and infrastructure projects, and brownfields redevelopment.

Barbora Grochalova advises public and private clients on environmental matters, including civil claims and regulatory proceedings. She also assists with environmental aspects of complex international and Canada-wide corporate transactions involving clients in heavy industry and manufacturing, as well as environmental matters pertaining to real estate transactions.

U.S. EPA to Terminate Temporary COVID-19 Enforcement Policy

Written by Michael Traynham, Nexsen Pruet, PLLC

On June 29, 2020, the United States Environmental Protection Agency (“EPA”) released an addendum to its previously announced COVID-19 Enforcement Policy, effectively setting a termination date of August 31, 2020, for the temporary enforcement discretion described in its previous memorandum. The U.S. EPA originally released a memorandum on March 26, 2020, addressing the impacts of the COVID-19 pandemic on the agency’s Enforcement and Compliance Assistance Program. The temporary policy relaxed regulatory consequences for most forms of noncompliance caused by COVID-19 related workforce shortages, social distancing requirements, and other limitations.

The temporary enforcement policy has been widely criticized by environmental interest groups for allegedly granting carte blanche to pollute. A number of State attorneys general have challenged the policy as well, asserting that it exceeds EPA’s authority.

The termination addendum reserves EPA’s right to terminate the enforcement discretion policy earlier than August 31, though only by providing a minimum advance notice of seven days. The termination of the temporary policy will require regulated entities to return to timely reporting for all permit and regulation based obligations, though under the terms of the temporary policy “catch-up” reports will not be required for monitoring report requirement that apply to intervals of less than three months. Annual or bi-annual reporting obligations may be required, even if the monitoring is conducted later than typically required. The termination also ends the blanket discretion to eschew civil penalties for noncompliance related to COVID-19, although the addendum states that EPA retains the ability to exercise enforcement discretion on a case-by-case basis.

With confirmed cases of COVID-19 on the rise nationwide, and renewed restrictions being implemented in several states, regulated entities should give additional attention to their compliance plans and contingencies prior to August 31. If workforce shortages or other COVID-19 related legal restrictions make compliance obligations impossible or impractical after the termination of the temporary policy, the documentation framework set out in EPA’s March 26 memo remains good practice:

  1. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
  2. Identify the specific nature and dates of the noncompliance;
  3. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
  4. Return to compliance as soon as possible; and
  5. Document the information, action, or condition specified in a. through d.

While there are no assurances of civil penalty avoidance after August 31, strong documentation of good faith efforts toward compliance will go a long way toward resolving issues as they arise.


About the Author

Michael Traynham is an experienced environmental law attorney based in the firm’s Columbia, South Carolina office. As a member of the Real Estate & Environmental practice group, he brings his trial experience and comprehensive knowledge on a wide variety of South Carolina environmental issues when advising his clients.

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

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.