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Federal Government Passes Controversial Environmental Legislation and Tanker Ban

Written by Blakes Environmental Law Group

The Government of Canada has enacted two new pieces of environmental legislation, significantly altering the process for federal project approvals in Canada. It has also passed extensive amendments to the rules regarding navigable waters and fish habitat protections that had been previously changed through omnibus legislation in 2012.

On June 20, 2019, the Senate passed three bills:

  1. Bill C-69, the controversial Act entitled An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts
  2. Bill C-48, Oil Tanker Moratorium Act
  3. Bill C-68, Act to Amend the Fisheries Act

All three bills received royal assent on June 21, 2019. Bill C-69 and significant portions of Bill C-68 will come into force later, through orders-in-council. Once in force, the bills will result in significant changes to how the government manages and approves projects in Canada. For more information on Bills C-69 and C-68, please see our February 2018 Blakes Bulletin: Federal Government Overhauls Canadian Environmental Legislation.

BILL C-69

Originally introduced in the House of Commons in February 2018, Bill C-69 toured the country and was amended three times before ultimately receiving royal assent over a year after its introduction. The final Senate vote was 57 to 37 with one abstention. Highlights of Bill C-69 include the repeal of the National Energy Board Act (NEB Act) and the Canadian Environmental Assessment Act, 2012 (CEAA), signalling the end of the National Energy Board (NEB) and the Canadian Environmental Assessment Agency. To replace them, the new Canadian Energy Regulator Act (CERA) and Impact Assessment Act (IAA) respectively, will create two new regulators: the Canadian Energy Regulator (CER) and the Impact Assessment Agency (Agency).

The CER, like the NEB, will continue to govern the lifecycle of federal energy projects, including interprovincial and international pipelines and transmission lines, offshore energy projects, and international energy trade. However, the new Agency will take over all impact assessments and evaluate projects based on several mandatory factors, including project need, economic and social effects, and Indigenous knowledge related to the project. The Agency or appointed review panel must report to the Minister of Environment and Climate Change Canada (Minister) or the governor-in-council on the positive and negative impacts of the project. This is in contrast to the existing procedure, where the NEB presides over project reviews and makes recommendations to the government. Cabinet or the Minister, however, will remain responsible for final determinations on the public interest.

The new IAA process will include an early planning stage and proponent impact statement prior to the commencement of an impact assessment. An impact assessment may be led by the Agency or a review panel, which may include panel members from lifecycle regulators such as the CER. Like the CEAA, the IAA will apply to designated projects; however, the regulations indicating which projects will be designated have not yet been finalized.

Bill C-69 was not passed with flying colours. The first round of amendments to the bill were made on the recommendation of the Standing Committee on Environment and Sustainable Development (ENVI). The ENVI Committee Report was prepared with input from Indigenous Peoples, companies and individuals. The initial round of amendments included changes such as clearer timelines, clarification around factors to be considered in project review (only feasible alternatives to be considered, both positive and negative impacts), clarification of transitional provisions and allowance for integrated review panels to ensure projects are subjected to only one review.

The first round of amendments was approved and Bill C-69 was sent to the Senate, where it was referred to the Standing Senate Committee on Energy, the Environment and Natural Resources (Senate Committee). After touring the country to hear from interested parties nationwide, in May 2019, the Senate Committee recommended, and the Senate subsequently adopted, nearly 200 amendments to the bill.

After the extensive amendments were approved by the Senate, Bill C-69 went back to Parliament. On June 13, 2019, the federal government accepted 99 of the amendments passed by the Senate and rejected the remainder. Of those 99, the majority were accepted as drafted, but a substantial portion were further amended. The resulting version of the bill (which has not yet been consolidated and released) was passed by the Senate on June 20, 2019.

Amendments

The accepted amendments are primarily amendments to the IAA. Among those amendments approved by the government and ultimately passed by the Senate are several changes to the IAA which re-allocate powers from the Minister to the Agency. For example, the ability to suspend time limits, or to determine relevant factors to consider in an assessment. Also, the Minister is not allowed to direct the Agency, its employees, or any review panel members with respect to a report, decision, order, or recommendation to be made under the IAA.

Several amendments recommended by the Senate Committee would have modified the mandatory considerations for project approvals set out in section 22 of the IAA, but all were ultimately rejected. Also included in the rejected Senate amendments were those which would have decreased the IAA’s obligations to consider the impacts of proposed projects on climate change. The resulting version of the IAA does not require the Agency to consider a project’s impact on climate change on a global level, to account for provincial enactments respecting climate change, or to explicitly exclude greenhouse gas emissions generated from another downstream physical activity or project from the definition of direct or incidental effects. The requirement to consider a project’s impact on Canada’s ability to meet its international climate change obligations remains.

Amendments that were accepted clarify that the Agency is responsible for determining the scope of the factors that must be considered when conducting an impact assessment. A clarifying amendment that appointed review panel members will be “unbiased and free from any conflict of interest” was also included, as well as those clarifying timelines for review panels. Obligations to consult with the president of the Canadian Nuclear Safety Commission and lead Commissioner of the Canadian Energy Regulator (depending on the designated project) when establishing a review panel’s terms of reference are also included.

Global amendments include changing the adjective “adverse” to “significant” when referring to project effects, and clarifying that Indigenous knowledge includes the knowledge of Indigenous women.

Transitional Provisions and Coming into Force

Some of the accepted amendments clarify the transitional provisions and coming into force of the acts in Bill C-69. For example, the new section 182.1 clarifies that an environmental assessment commenced under the CEAA for which a decision statement has not yet been issued upon the coming into force of Bill C-69 is continued as if the CEAA had not been repealed. The new section 187.1 also confirms that a regional study commenced under the CEAA but not completed until after Bill C-69 comes into force is continued as an assessment under the IAA. Also, a regional report under the CEAA is deemed to be report under the IAA.

Completed studies, assessments and approvals under the NEB Act or the CEAA will be continued under the new legislation. If a designated project under the CEAA was determined not to require an environmental assessment, the IAA will not apply. Incomplete assessments or applications will be completed under the legislation they were commenced under, although by a new regulatory body (the Agency or the CER). NEB members may be requested to continue to hear applications that were active before them upon the coming into force of the acts.

Bill C-69 received royal assent on June 21, 2019. It will come into force on a day specified by the governor-in-council.

BILL C-48

The Oil Tanker Moratorium Act was also passed on June 20, 2019 in a Senate vote of 49 to 46, with one abstention. Like Bill C-69, Bill C-48 went on tour and faced two rounds of amendments before making it through the Senate. The Standing Senate Committee on Transport and Communications ultimately rejected the Bill. Interestingly, one of the reasons the Senate Committee recommended that Bill C-48 not proceed was that it felt, should Bill C-69 be passed into law, Bill C-48 would be unnecessary. Despite this recommendation, the Senate rejected the Senate Committee’s recommendation and passed Bill C-48 with minor amendments. The House of Commons accepted the amendments in part, resulting in a requirement to review the act in five years.

The Oil Tanker Moratorium Act will prevent all oil tankers carrying more than 12,500 tonnes of crude oil or persistent oil as cargo from stopping or unloading at ports or marine installations north of Vancouver Island to the Alaskan border. It is particularly criticized as being prejudicial to Western Canadian interests.

BILL C-68

Originally introduced in the House of Commons in February 2018, Bill C-68 was amended at the third reading stage in the House of Commons, and then further amended by the Senate after consideration by the Senate Committee on Fisheries and Oceans. It was passed by the Senate after the House of Commons agreed to accept 30 of the amendments proposed by the Senate and the Senate agreed to the House’s rejection of the rest of the Senate’s amendments.

Significant parts of Bill C-68 relate to the fishery itself but there are some key changes to the fish and fish habitat protection and pollution prevention provision of the Fisheries Act which are of relevance to project development and ongoing operations affecting fish and fish habitat. Of most importance is the repeal of the prohibitions against causing serious harm to fish and the return of the separate prohibitions on death to fish, and causing harmful alteration, disruption or destruction of fish habitat, or HADD as it is usually called. A last-minute amendment at the third reading stage had been added to create a provision which deemed the: “quantity, timing and quality of water flow necessary to sustain freshwater or estuarine ecosystems of a fish habitat” to be fish habitat. However, with significant opposition to the deeming provision from stakeholders across the country, the Senate voted to remove it, and the House of Commons agreed.

The amendments to the act expand the authority of the Ministry to establish standards and codes of practice, and also broaden the exceptions to the prohibitions not to cause HADD or the death of fish to allow for the Minister to prescribe classes of works or undertakings that can be carried out. The amendments also allow for fish habitat banks and habitat credits granted in relation to conservation projects carried out by a project proponent for the purpose of creating, restoring or enhancing fish habitats within a prescribed area.

Most of Bill C-68 will not be in force until the government issues new and revised regulations necessary to implement the amended provisions.

CONCLUSION

The adoption of Bills C-69, C-48 and C-68 completes a legislative overhaul of environmental assessment laws in Canada. This multi-year process commenced in early 2016 and included recommendations from expert panels, significant nation-wide debate and travelling Senate Committees. While the changes to the Fisheries Act would appear to set back the clock somewhat, expanded regulatory powers may offset the retroactive aspects of the amendments for new projects impacting Canadian waters.

Bills C-69 and C-48 in particular have been highly controversial, with some provinces arguing that they constitute an invasion on provincial jurisdiction to develop natural resources. Alberta Premier Jason Kenney announced his intention to challenge both of the new acts in court. Critics are concerned that project approvals, in particular for pipelines, will not be forthcoming, and that the tanker ban is a targeted attempt to interfere with bitumen production in Alberta.

Although we now have certainty regarding the specifics of the legislation that new projects will be subject to, questions remain regarding whether the implementation of the legislation will achieve one of its main objectives, which is to enhance “Canada’s global competitiveness by building a system that enables decisions to be made in a predictable and timely manner, providing certainty to investors and stakeholders, driving innovation and enabling the carrying out of sound projects that create jobs for Canadians.”


Republished with permission from Blakes. This article was originally published Blakes Business Class website.

For further information, please contact any member of Blakes’ Environmental Law group.

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).

Ontario’s Proposed Excess Soil Regulations: Effects & Benefits

Written by Abimbola Badejo, Staff Writer

Where do the soils excavated from our
basements go? Our backyards, neighbors’ backyards or into our drinking water?

Background

Soil is an important natural resource that needs to be conserved for sustainability and hygienic reasons. Numerous activities and projects such as construction, mining, contaminated site remediation, expansive archaeological projects, etc., require soil excavation.

The excavated soil is used to refill the vacant land or removed from the project site as “excess soil” left over from a project. The disposal of excavated soil however, posses a challenge for the contractors undertaking the projects as the receiving sites or facilities for excess soils are either far, unavailable or result in expensive transportation costs.

In certain instances, this problem has resulted in illegal dumping of excess soils onto farmers fields and vacant lands across Ontario, without the appropriate consideration of soil quality or dumping location. A 2018 CBC story on illegal dumping estimated the amount of illegal soil dumped in Ontario could annually fill Rogers Centre, home of the Toronto Blue Jays, sixteen times.

Aerial view of Rogers Centre, Toronto (Photo by Tim Gouw from Pexels)

Previous Government Reactions

To tackle the problem of illegal excess soil dumping, the Ontario Environment Ministry released a guidance document titled: “Management of Excess Soil – A Guide For Best Management Practices.” There was no obligation for compliance to the guidance document and thus the illegal practice continued.

With illegal dumping continuing in the province, the Environment Ministry released of a legal document which required compliance. The legal document, Regulatory Framework on Excess Soil Management, was made to clarify the responsibilities of excess-soil generators and a list of requirements guiding the sampling and analysis, soil characterization, tracking and dumping of excess soils. The Excess Soil Management proposal was posted on the Environmental Registry of Ontario for public comments from concerned stakeholders for two months in 2017; and afterwards an amended proposal implementing changes influenced by the comments was released.

The Latest Regulatory Proposal

With the Ontario election in the June of 2018 resulting in a change of government, the regulatory proposals for excess soil management were put on hold. On May first, the government issued its an updated proposal for the management of excess soil.

The proposed Excess soil regulatory proposal and amendments to Record of Site Condition (Brownfields) Regulation have the following features:

  • A revised approach to waste designation, where excess soil is
    considered waste and should be treated as one according to Part V of the Environmental Protection Act 1990 (Waste
    Management); unless the relocated excess-soil is reused in an appropriate way
    or is deposited at a final receiving site that has appropriate approval
    documents,
  • Reduced regulatory complexity, where waste related approvals
    for low-risk soil management activities may no longer be required, provided
    certain requirements are met,
  • Flexibility for soil reuse through a beneficial Reuse
    Assessment Tool to develop site-specific standards and to provide a better
    understanding of environmental protection,
  • Improving safe and appropriate reuse of excess soil by
    quality soil testing, tracking and registration of soil movements for larger
    and riskier generating and receiving sites,
  • Landfill restrictions on clean soil deposit unless it is
    required for cover.

Once promulgated, the transition phase into the new regulations will take place over the period of 2 to 3 years, where the more flexible excess-soil reuse regulations, such as the amended Record of Site Conditions (O. Reg. 153/04), are already in effect. Other amendments, such as excess soil management planning and landfilling restrictions will come into effect between 2020 and 2022, to allow time for the production of alternative excess soil reuse approaches.

Benefits of
Policy

From an environmental perspective,
the proposal’s call for some regulatory key points are quite sustainably
beneficial. Registering and tracking the excess soil movement from excavation
source to receiving site or facility will minimize illegal dumping.
Transporting and illegal dumping of the excess soils is a source of concern
because excavated soil is a source of trapped Greenhouse Gases (GHG).
Inappropriate tipping of a considerable amount of excess soil will result in
the release of a significant amount of GHG in the atmosphere. Moreover,
vigorous testing and analysis of the excess soils meant for landfill will
ensure that contaminated soil is properly disposed of as hazardous waste,
instead of illegally covering it up at a landfill where is poses a threat as a
potential source of contamination to ground water.

Excess Soil
Market Impact

Economically, implementing the excess soil management policy will be beneficial to contractors and will encourage them to be more proactive in making their Excess Soil Management Plan (ESMP) in favor of excess soil reuse. This will assist in developing alternative, better and cheaper ways of reusing their excess soils; or selling off some (or all) of the excavated soils to a buyer,  who will put it to good use.

In addition, there has been a report of excess soil “black market” emergence in the industry; where contractors are avoiding the higher costs of tipping at provincially regulated designated facilities in exchange for illegal tipping at ignorant landowners’ fields. These landowners are receiving the excess soils at a small fee from the contractors, without consideration for the quality of the soil and possible environmental effect in the future. Implementation of the policy will minimize the expansion of this market, especially because of the registration and tracking requirements of the excess soil load and the approval documents required of the receivers.

Time To Clean Up: Alberta’s Revamped Remediation Regulation

Written by Sean D. Parker and Stuart W. Chambers, McLennan Ross LLP

In 2018 the Government of Alberta overhauled the Remediation Certificate Regulation, made under the Alberta Environmental Protection and Enhancement Act (“EPEA”). Effective January 1, 2019, the newly titled “Remediation Regulation came into force.

The new Alberta regime for contaminated sites under the Remediation Regulation has two main parts:

1. Deadlines for completing remediation and submitting reports; and

2. Obtaining remediation certificates.

Deadlines for Remediating Contamination and Submitting Reports

One of the fundamental changes to the regulatory regime for contaminated sites is the imposition of a timeline for completing remediation, or submitting a remedial action plan that includes a deadline for clean-up. The obligations for remediation under the revamped regulation are grounded in the general clean-up provisions of EPEA section 112, which impose the duty to remediate a release that “may cause, is causing or has caused an adverse effect”. The Remediation Regulation at section 2.2 adds detail to that general obligation, by requiring a person responsible for a contaminated site to remediate this site “as soon as possible”. Alternatively, if remediation cannot be completed within two years, the person responsible shall “as soon as possible” submit a remedial action plan to the director of Alberta Environment and Parks (“AEP”) for approval. The remedial action plan shall include specified information such as the remedial methods to be used and the deadline for completion. In essence, this provision of the Remediation Regulation requires immediate clean-up, but if that is not feasible within the two-year period (i.e. two remediation seasons), then the obligation becomes a requirement to submit a remedial action plan for AEP’s approval.

The structure of this new regime is intended to provide the person responsible for a contaminated site the opportunity to clean-up the site within a two-year period and then submit all reports, such as a Phase II Environmental Site Assessment and remediation closure report, to AEP once the clean-up work is complete. That is seen to be a more streamlined process where AEP’s involvement is generally limited until the final review.

Alternatively, if the site “cannot be remediated to the satisfaction of the director within a two-year period” (section 2.2 (2)), then the person responsible must follow a different path that involves more oversight by AEP through the process. The first requirement is that the person responsible must submit a Phase II Environmental Site Assessment “as soon as possible” (section 2.2 (1)). The other requirement is that the person responsible must “immediately” submit a remedial action plan that specifies the completion time for the remediation (section 2.2 (2)). Essentially, if the remediation cannot be completed within two field seasons, AEP becomes involved earlier on in the process and has greater oversight over steps such as delineation work and planning of the remediation.

Although there is logic in this general approach – that AEP has more involvement on more complex sites – there is some uncertainty as to how this regime will actually be implemented. For example, it is not clear how the requirement to submit Phase II Environmental Site Assessment “as soon as possible” under section 2.2 (1) will be applied. Likewise, it is not clear how it will be determined that a site “cannot” be remediated within a two-year period, as provided for under section 2.2(2). Further, the remedial obligations are subject to discretion of the AEP director as to how those obligations will be enforced, for example, what information will be required, and timelines for completing a variety of steps. It is understandable and appropriate for a director to have discretion in contaminated site matters, as each site is different and will present its own unique circumstances. However, these obligations are very new and there are no precedents for their application, resulting in a lack of guidance which in turn generates uncertainty for those who may be responsible for a contaminated property. 

Another significant provision with respect to the remedial obligations is the grandfathering clause found in section 2.2(7). Essentially, the Remediation Regulation will only apply to sites reported to AEP on or after January 1, 2019. Sites that were previously reported, will not be subject to the new regime as it is presumed that they would already be engaged in a previous process for dealing with the site. However, as with other aspects of this new regime, the grandfathering clause is also subject to the discretion of the director. In other words, the new requirements for clean-up within two years, or submission of other reports and plans for completing the remediation work, may nevertheless be required by the director for a previously reported site. Again, while it may be appropriate for the director to impose those requirements for certain sites, it is unclear at this time on what basis the director will or should exercise discretion in this regard. 

Remediation Certificates and Tier 2 Compliance Letter

The second main part of the refurbished Remediation Regulation relates to the revamping of the regime for issuing remediation certificates, and a newly created Tier 2 compliance letter. Under the new regime, there are two types of remediation certificates available: (1) a “site-based” remediation certificate, and (2) a “limited” remediation certificate (section 4). The general concept of a remediation certificate is that it closes regulatory liability for the party that has obtained it. This means a party that obtains a remediation certificate will not be subject to future regulatory requirements from AEP in relation to the substances or areas covered under the remediation certificate. However, additional contamination discovered at a later date that is not covered under the remediation certificate will not enjoy this same protection and could be subject to further regulatory action. 

The site-based remediation certificate provides the highest degree of regulatory protection. This type of certificate applies to the entire area that has been impacted by the activity. Specific requirements for obtaining a remediation certificate are set out in section 4 of the Remediation Regulation. Essentially, a site-based remediation certificate can only be issued where all of the contamination has been identified and cleaned up on the site and on other affected surrounding lands. There is an exception where a site-based remediation certificate could be issued for the specified parcel of land and where contamination remains off-site, provided that the remaining off-site impacts are subject to a risk management plan that has been approved by the director. It is important to recognize that the off-site areas under a risk management plan would not be captured under the remediation certificate, and therefore would not enjoy the regulatory closure that those certificates provide pursuant to section 117 of the Environmental Protection and Enhancement Act

The other type of remediation certificate is called a “limited” remediation certificate. These certificates do not apply to the entire area impacted by the activity, as with a site-based remediation certificate, but rather apply to the limited area that has been remediated to the satisfaction of the AEP director. These limited remediation certificates appear to be more suitable for a discrete type of event such as a known release on a known part of the site. To obtain a limited remediation certificate, the area of impact would need to be assessed and fully remediated to the satisfaction of the director. The certificate would apply only to that limited area, and the contaminants of concern that were identified and remediated. This is a less rigorous process than for the site-based remediation certificate and therefore provides a more restricted degree of regulatory protection. Site-based remediation certificates provide regulatory closure for an entire parcel of land, however, they require full assessment of any impacts on that site and then complete remediation. A limited remediation certificate, on the other hand, would not require a full assessment of the entire site, but rather only of the specific area for which the certificate is sought, and likewise would only provide regulatory closure for that specific area that has been assessed and remediated. 

The third type of document provide for under the new Remediation Regulation is called a Tier 2 compliance letter. This document is intended to provide some level of assurance or comfort to parties that were not able to obtain either a site-based or limited remediation certificate. In order to obtain any form of remediation certificate, some remediation must have actually been completed. If no remediation is conducted, a remediation certificate cannot be issued. The Tier 2 compliance letter was developed to account for situations where the remediation guidelines can be adjusted based on site specific conditions under Alberta’s Tier 2 process, with the effect that human health and the environment are still protected, but no remediation would actually be required. 

While the Tier 2 compliance letter may appear to be a solution where a remediation certificate is not available, its practical value appears to be limited as it does not provide regulatory closure like a remediation certificate would. The Tier 2 compliance letter is solely a creation of the Remediation Regulation, and is not grounded in section 117 of the enabling statute, EPEA, which provides certain statutory guarantees. The effect of this distinction is that an area or site for which a remediation certificate has been issued is not subject to further regulatory action by AEP, for example, requiring further remediation if the guidelines change. Conversely, an area that is the subject of a Tier 2 compliance letter does enjoy the same protections and further regulatory action could be required at a later date, for example, further remediation if the guidelines do change. It is uncertain what the practical benefit of a Tier 2 compliance letter is given the apparently limited degree of protection that it affords.

Conclusions and Further Thoughts

The Remediation Regulation that came into force on January 1, 2019 sets out a revised regulatory regime that will be applied to contaminated sites in Alberta going forward. The new regime imposes additional requirements for assessment and reporting to AEP, as well as new timelines for doing so. However, given the significant discretion afforded to directors at AEP and the lack of precedents for how decisions will be made under this new regime, there is significant uncertainty as to how the Remediation Regulation will be applied, and how the directors’ discretion will be exercised over a variety of matters. Further, it appears that some of these new requirements will involve an enhanced degree of interaction with AEP in terms of reviewing site assessments, remedial action plans, risk assessments, risk management plans and other documents. It is unclear how AEP will handle this potential increased workload so as to ensure the new regime operates in an efficient and effective manner, rather than creating backlogs and other unintended consequences. 

The new site-based remediation certificate provides more comprehensive regulatory closure as compared to the limited remediation certificate. However, the higher degree of protection for the site-based certificate comes with greater assessment and remedial obligations. Depending on the unique circumstances of each site and intended purpose for obtaining a remediation certificate, consideration should be given as to what degree of regulatory closure is reasonably required balanced against the amount of work and cost associated with each type. Further, consideration should be given to the amount of time that may be required for processing of a remediation certificate application. Often, remediation certificates are sought to limit liability and facilitate some type of commercial transaction, such as the sale of land. However, the current timeline for obtaining a remediation certificate could be in excess of three years, which could wipe out any practical benefit depending on the commercial conditions of the transaction. In order to have an effective remediation certificate regime, the process will need to be reasonably responsive and operate on timelines that correspond to commercial realities. 

While the concept of a Tier 2 compliance letter appears to be sound and may be appropriate in certain circumstances, its practical utility is questionable given that the regulator could still come back at a future date and require a further action. To obtain the protections afforded by a remediation certificate, a proponent may consider conducting at least some remediation in order to be eligible for remediation certificate. However, the degree of remediation required in order to qualify for the remediation certificate program is an another currently open question. 

Overall, the Remediation Regulation sets out a new regime for managing contaminated sites in Alberta, building upon the existing remedial obligations embodied in section 112 of the Environmental Protection and Enhancement Act. Given the newness of this regime and the significant discretion afforded to AEP decision-makers, there is uncertainty as to how the regulation will actually be implemented.

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

Sean D. Parker is the Co-Chair of the Energy, Environmental & Regulatory Practice Group at McLennan Ross and is regularly engaged to provide legal advice on a variety of environmental management and engineering projects, and commercial transactions. Sean acts for a wide variety of clients including: landowners, large industry players, municipalities, government departments and administrative tribunals.

In his commercial litigation practice, Sean handles a variety of matters including contaminated site litigation, landlord-tenant disputes, property damage claims and others.

The time Sean spent in the environmental consulting field becoming a lawyer provides him with a valuable technical foundation to support his practice in environmental, regulatory and natural resource law.

Stuart Chambers is a partner at McLennan Ross practicing in the areas of energy, environmental & regulatory and commercial litigation, focusing on environmental and occupational health and safety regulatory law, and class actions.

Stuart has extensive experience advising oilsands and other industrial operators in relation to environmental and health and safety law issues, in particular in preparation for and responding to regulatory investigations and prosecutions.

Stuart has a wide range of experience in commercial litigation matters, including contractual disputes, recovery of funds and class actions.

While Stuart has extensive experience in complex multiparty litigation, he is equally comfortable in finding efficient solutions for smaller disputes. He utilizes alternative dispute resolution methods including mediation and arbitration to resolve issues and has significant experience acting as both plaintiff and defendant counsel in class actions in Alberta and in British Columbia.

Stuart advises organizations on contract interpretation, drafting and policy issues and has advised government and administrative tribunals on policy and adjudicative matters.

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

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

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

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

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

SITE-BASED REMEDIATION CERTIFICATE

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

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

NEW REPORTING REQUIREMENT

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

APPLICATION OF TIER 1 VERSUS TIER 2 GUIDELINES

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

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

TIER 2 COMPLIANCE LETTER

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

NEW REMEDIAL MEASURES TIMELINE

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

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

NEXT STEPS

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

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


About the Authors

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

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

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

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

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

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

Are you ready for Ontario’s Excess Soil Management Regulation Changes?

by David Ngugan, Staff Writer

A breakfast and seminar session organized by ECOH Management Inc. was held on June 20th in Mississauga, Ontario.  The seminar included a presentation by Vice President Jeff Muir titled “Digging Deep – Are you ready for Ontario’s Excess Soil Management Regulation Changes?” about the upcoming changes to the Excess Soil Management Regulations. He spoke about the implications of the new regulations, including cost, the depletion of sites with capacity to accept waste soils, illegal dumping and lack of tracking, and inconsistent oversight and criteria for the management of excess soils.

Jeff Muir, VP Environmental, EHOS

Jeff spoke about the current 2014 guidelines – “Management of Excess Soil – A Guide for Best Management Practices” that gives options for the management of excess soils both onsite and offsite,  as well as best management practices for project leaders. These include having an excess soil management plan to indicate where the soil will go and a sampling and analysis plan, including soil characterization and characterization of the receiving site.

He also pointed out some issues with the guidelines, particularly in the lack of clarity regarding who is responsible for the excess soil, as the term “project leader” is loosely defined. In addition, the requirements for proper characterization of soils are not clearly defined, such as a minimum number of samples required for a specific volume of soil. Jeff added that currently, many receiving sites are usually managed by municipalities that issue permits for the receiving of excess soil, and this presents opportunities for inconsistencies between various sites.

The proposed regulations enhance the responsibility and accountability of the generators of excess soil, as well as requiring an Excess Soil Management Plan (ESMP) for high risk or high volumes of soil. Under the proposed regulations, a ESMP should consist of a description of the project area and description and ownership, the names of qualified persons and contractors, excess soil sampling plan and characterizations, a list of receiving sites, a soil tracking system, and a record of the cumulative amount of soil moved.  The new regulations will also establish a registry where ESMPs will be submitted.

Jeff concluded his presentation by stressing the importance of preplanning – have all the costs, receiving sites, and estimated volumes of soil prepared ahead of time, as well as to focus on working with ESMPs well ahead of the promulgation of the regulations.  It is anticipated that the regulations will be promulgated this calendar year.

Canadian Government Introduces Amendments to Fisheries Act: Initial Thoughts

Article by  Selina Lee-AndersenStephanie Axmann,and Paul R. Cassidy

McCarthy Tétrault LLP

On February 6, 2018, the federal government announced amendments to the Fisheries Act (the “Act”) aimed at restoring what it describes as ‘lost protections” and “incorporating modern safeguards” to protect fish and fish habitat. The Act, regarded as one of Canada’s principal environmental laws as it is the primary federal statute governing fisheries resources in Canada, includes important provisions for conserving and protecting fish and fish habitat that affect a variety of industries.

The proposed amendments result from a process launched by the government in October 2016, when the Minister of Fisheries and Oceans asked the House of Commons Standing Committee on Fisheries and Oceans (the “Committee”) to review changes to the Act made in 2012 by the previous government of then Prime Minister Stephen Harper. The Report of the Fisheries and Oceans Committee on the Fisheries Act review, entitled “Review of Changes Made in 2012 to the Fisheries Act: Enhancing The Protection of Fish And Fish Habitat and the Management Of Canadian Fisheries” (the “Fisheries Report”) was released on February 24, 2017 and made 32 recommendations to the government. In June 2017, the government released its Environmental and Regulatory Reviews Discussion Paper, which outlined potential reforms and proposed, among other things, that “lost protections” be restored in the Act.

A Quick Summary

Under the proposed amendments, the scope of the Act will be increased to cover all fish, rather than commercial, Indigenous and recreational fisheries (as currently set out in the Act). Unsurprisingly, the government proposes to reintroduce the pre-2012 prohibition on the “harmful alteration, disruption or destruction of fish habitat“, also known as HADD. This means that the concept of “serious harm to fish” under the current Act will be removed. By reintroducing the HADD language, the federal government is also reintroducing old uncertainty in the case law about what precisely constitutes a HADD; whether this will be addressed in guidance from Fisheries and Oceans Canada (DFO) remains to be seen.

Salmon Spawning (Photo Credit: D. Herasimtschuk)

The proposed amendments also include a new requirement to consider cumulative effects, along with increased regulatory powers to amend, suspend, or cancel authorizations. In support of reconciliation efforts, the proposed amendments also provide opportunities to increase the role of Indigenous groups in decision-making under the Act and in managing fisheries and fish habitat.

It does not appear that the pollution provisions in section 36 (prohibiting the deposit of deleterious substances) of the Act will be changed, even though they have long created a scientifically questionable prohibition on the deposit of any substances deemed to be deleterious without regard to their quantity or the actual receiving environment.

A Closer Look

A more detailed look at the proposed amendments is set out below and will be expanded upon in future blogs. From a policy perspective, the proposed amendments are designed to achieve the following objectives:

  • restore lost protections by returning to comprehensive protection against harming all fish and fish habitat;
  • strengthen the role of Indigenous peoples in project reviews, monitoring and policy development;
  • recognize that decisions can be guided by principles of sustainability, precaution and ecosystem management;
  • promote restoration of degraded habitat and rebuilding of depleted fish stocks;
  • allow for the better management of large and small projects impacting fish and fish habitat through a new permitting framework and codes of practice;
  • create full transparency for projects with a public registry;
  • create new fisheries management tools to enhance the protection of fish and ecosystems;
  • strengthen the long-term protection of marine refuges for biodiversity;
  • help ensure that the economic benefits of fishing remain with the licence holders and their community by providing clear ability to enshrine current inshore fisheries policies into regulations; and
  • clarify and modernize enforcement powers to address emerging fisheries issues and to align with current provisions in other legislation.

Within the context of resource development, the following proposed amendments will likely have the greatest impacts on the design, construction and operation of projects going forward:

  • Protecting Fish and Fish Habitat: The federal government is proposing the restoration of protections for fish and fish habitat that were lost with changes in 2012. In particular, it is proposing that all fish and fish habitats be protected, and that the previous prohibition against “harmful alteration, disruption or destruction of fish habitat” be restored. In addition, the federal government is proposing to restore a prohibition against causing “the death of fish by means other than fishing” and to introduce a new requirement to make information on project decisions public through an online registry.
  • Better Management of Projects: The federal government is proposing the development of regulations that clearly define which projects would always require ministerial permits before a project can begin. In particular, it is proposing that projects that would always require ministerial permits be called designated projects, which would be identified based on their potential impact on fish and fish habitat. These are expected to be larger-scale projects. Currently, projects requiring authorization under the Fisheries Actare determined on a project-by-project basis. DFO surmises that the concept of a designated project would provide greater certainty for proponents around process and timelines. DFO’s current practice of issuing letters of advice and ministerial authorizations will continue for projects that are not listed as designated projects. In addition, the federal government is proposing the establishment of new authorities to support the development of codes of practice, which will serve as formal guidance documents for small, routine projects such that, if followed, permits or authorizations are not needed. The actual value of such codes of practice has been the subject of uneven experience in other environmental legislation. However, the codes of practice should, it is anticipated, provide advice to project proponents on how to avoid impacts on fish and fish habitat, and ensure compliance with the Act.
  • Restoring Habitat and Rebuilding Fish Stocks: In order to create more stable and resilient aquatic ecosystems and support the sustainability of fish stocks, the federal government is proposing that DFO be required to consider whether proposed development projects give priority to the restoration of degraded fish habitats. In addition, the federal government is proposing to introduce a requirement to create and publish habitat restoration plans on a public registry after designating an area as ecologically significant where habitat restoration is needed. The Minister will also be given the ability to create regulations related to the restoration of fish habitat and the rebuilding of fish stocks.
  • Reconciliation with Indigenous Peoples: The federal government has stated that proposed changes to the Fisheries Act will help to advance reconciliation with Indigenous peoples by, among other things: (i) requiring consideration of traditional knowledge for habitat decisions and adverse effects on the rights of Indigenous peoples when making decisions under the Act; (ii) enabling agreements with Indigenous governing bodies to carry out the purposes of the Act; and (iii) introducing a modernized fish habitat protection program that would enhance partnering opportunities with Indigenous communities regarding the conservation and protection of fish and fish habitat. It should be noted that DFO’s efforts to help advance reconciliation is taking place within the broader federal government review of laws and policies related to Indigenous peoples, which was initiated in February 2017.

DFO has prepared a comparison of the proposed changes, which is summarized below:

Before Proposed Amendments After Proposed Amendments
Not all fish and fish habitat protected; only those related to a commercial, recreational or Aboriginal fishery protected.

 

Protection of all fish and fish habitat.

 

 

No explicit reference to consideration of the rights of Indigenous peoples, and their unique knowledge, to inform decision making.

 

 

Provided Indigenous traditional knowledge must inform habitat decisions.

Requirement to consider adverse effects of decisions on the rights of Indigenous peoples.

 

Ability to enter into certain agreements restricted to provinces and territories only.

 

Added ability to enter into agreements with Indigenous governing bodies as well as provinces and territories.

 

No provisions regarding the independence of inshore licence holders.

 

 

 

 

Provisions allowing for recognition of social, economic and cultural factors, as well as the preservation or promotion of the independence of licence holders in commercial inshore fisheries.

Enabling regulations to support independent inshore licence holders.

 

No tools to quickly implement in-season fisheries restrictions to address unforeseen conservation and management issues. Ability to put in place targeted short-term measures to quickly and effectively respond to unforeseen threats to the management of fisheries and to the conservation of fish.

 

Uncertainty as to when authorizations are required for development projects. Clarity on which types of projects require authorizations through permitting and codes of practice.

 

Lack of transparency regarding authorization decisions for projects; no requirement to publicly release information on these decisions.

 

Requirement to publicly release information on project decisions through an online registry.

 

 

No tools to address long-term marine conservation. Ability to create long-term area-based restrictions on fishing activities to protect marine biodiversity.

 

No specific provisions to address whales in captivity. A prohibition on fishing cetaceans with intent to take them into captivity unless authorized by the Minister in circumstances where the animal is injured, in distress or in need of care.

 

No legal requirements related to rebuilding fish stocks.

 

 

 

 

Minister must consider whether stock rebuilding measures are in place when making a fisheries management decision that would impact a depleted stock.

Enabling regulations respecting the rebuilding of fish stocks.

Antiquated provision for the management offences under the Fisheries Act, often leading to costly and long court processes.

 

Ability to address Fisheries Act offences outside of court using alternative measures agreements, which reduces costs and repeat offences.

 

No provisions to restore degraded habitat as part of development project reviews.

 

Provisions to consider restoration priorities as part of development project reviews.

 

Insufficient capacity to enforce provisions under the Act.

 

Enhanced enforcement and monitoring capacity on the water and for projects.

 

We will continue to monitor and provide commentary as the proposed amendment legislation makes its way through Parliament. DFO has indicated that regulations and policies are now being developed in consultation with Indigenous groups, provinces and stakeholders to support the implementation of the amendments. Like a lot of environmental legislation, the true impact of the new Fisheries Act will only be meaningfully gauged once its regulations are published.

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Photo Credit: Nature Canada