contaminated sites - Environmental Compliance Insider

Volume 10 - Issue 5
May 2015
FEATURES
W Contaminated Sites1
How to Comply with Remedial
Action Plan Requirements
77 Resources for Developing
Remedial Action Plans (p. 3)
W New Laws4
CONTAMINATED SITES:
How to Comply with Remedial Action Plan
Requirements
M
ost jurisdictions regulate sites that are or have been contaminated. For
example, the environmental laws may require the owners of contaminated sites
to register such sites in a public database. In addition, the law may require
owners to submit plans on how they’ll remediate or clean up the sites and then take the
steps specified in these plans. So here’s a look at what steps you should take to ensure
compliance with so-called “remedial action plan” requirements for contaminated sites.
The New Supplier Label
Requirements under WHMIS 2015
77 Comparison of General
Supplier Label Elements (p. 4)
Defining Our Terms
The environmental laws use various terms to refer to plans to remediate a contaminated
site, including remedial action plans, remediation plans and plans of restoration or
rehabilitation. For simplicity’s sake, we’ll use the term “remedial action plan” throughout
to refer to such plans.
How Climate Change Can Increase
OHS Risks to Workers
77 Framework for the
Relationship between
Climate Change & OHS (p. 10)
TAKE 6 STEPS
W Climate Change9
REGULARS
W Case of the Month1
The contaminated site requirements are usually set out either in the jurisdiction’s general
environmental laws or in laws dealing specifically with contaminated sites. As always,
you should consult your jurisdiction’s environmental laws for any requirements for
remedial action plans for contaminated sites and ensure that you comply with those
requirements. However, despite differences among the jurisdictions, taking the following
steps will generally help you comply with those requirements:
continued inside ON PAGE 2
BC Case Illustrates Difficulty in
Proving ‘Innocent Acquisition’ Defence
W Month In Review5
A roundup of important new legislation,
regulations, government announcements
and court cases
TALK TO US
The Insider's goal is to help EHS professionals do
their jobs better and more easily. So tell us what you
need! For example, are you unsure about certain
requirements under the environmental laws?
Need help training supervisors and workers on
reporting spills? Share your pressing environmental
compliance problems with us by calling (203) 9876163 or emailing robinb@bongarde.com
Robin L. Barton
Editor in Chief
CASE OF THE MONTH:
BC Case Illustrates Difficulty in Proving
‘Innocent Acquisition’ Defence
U
nder the environmental laws, various people and entities can be held liable
for cleaning up contamination, including current and former owners of
contaminated property or property that’s the source of contamination. When
asked to pay remediation costs, those parties may try to raise what’s sometimes called
the “innocent acquisition” defence. In essence, they argue that when they bought
the property, it was already contaminated; they didn’t know or have reason to know
it was contaminated; and they made appropriate inquiries and investigations into the
prior ownership and uses of the property before buying it. In addition, they must not
have caused or contributed to the contamination. But proving the innocent acquisition
defence is harder than you may think. Here’s a look at a recent case from BC in which
property owners unsuccessfully raised that defence.
continued inside ON PAGE 5
Environmental W Compliance Insider
2
ENVIRONMENTAL
COMPLIANCE INSIDER
Board of Advisors
Matthew Allen, M. Eng., P. Eng.
Giffin Koerth Forensic Engineering
Toronto, ON
Paul R. Cassidy
McCarthy Tétrault LLP
Vancouver, BC
Greg Doran
Jacobs Industrial Services
Saint John, NB
André Durocher
Fasken, Martineau, DuMoulin LLP
Montreal, QC
Stacey Ferrara
Shell Canada Ltd.
Calgary, AB
Paul MacLean
EEM Inc.
Montreal, QC
Mark Madras
Gowling Lafleur Henderson LLP
Toronto, ON
EDITOR IN CHIEF/SENIOR WRITER:
ROBIN L. BARTON
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CONTAMINATED SITES continued FROM COVER
Step #1: Determine if Site Is a Contaminated Site
Remedial action plan requirements apply to contaminated sites. So the first question you should
ask is whether your property is considered a contaminated site under the law. The environmental
laws usually define “contaminated site.” In some jurisdictions, the definition is fairly vague and
is simply any area designated as a contaminated site by the appropriate government official, such
as the Minister of the Environment. For example, Saskatchewan’s Environmental Management
and Protection Act, 2002 says that “if the minister is of the opinion that a substance that may
cause, is causing or has caused an adverse effect is present in an area, the minister may designate
that area as a contaminated site” [Sec. 11(1)].
In contrast, BC’s Environmental Management Act defines contaminated site as “an area of
the land in which the soil or any groundwater lying beneath it, or the water or the underlying
sediment, contains” either a hazardous waste or another prescribed substance “in quantities or
concentrations exceeding prescribed risk based or numerical criteria or standards or conditions”
[Sec. 39(1)]. So check your jurisdiction’s definition of “contaminated site” and determine whether
your property fits that definition and thus may be subject to the remedial action plan requirements.
Step #2: Determine if Remedial Action Plan Is Required
If you’ve concluded that your property qualifies as a contaminated site, next determine
whether you’re required to develop a remedial action plan for it. In some cases, all designated
contaminated sites require such plans. For example, in Newfoundland, a person responsible for a
contaminated site must submit to the minister an environmental site assessment and a remedial
action plan with respect to the contaminated site [Sec. 28(1), Environmental Protection Act].
In other cases, the government may order the
creation of a remedial action plan for a contaminated
site. For example, in Manitoba, The Contaminated
Sites Remediation Act says that the director may,
at any time before issuing a remediation order with
respect to a contaminated site, order a responsible
person to prepare and file with the director a plan
for the remediation of the site in a form acceptable
to the director and containing such information as
is required by the order or regulation [Sec. 15(1)].
Insider Says: The requirement for creation
of a remedial action plan typically applies
to a “person responsible for a contaminated
site,” which may include:
77The owner or previous owner of the site;
77Every person who has or has had charge,
management or control of the site; or
77Any successor, assignee, executor,
administrator, receiver, receivermanager or trustee of an above person.
Step #3: If Not, Decide If Creating One Is Beneficial Anyway
In some jurisdictions, remedial action plans may not be required at all. But the environmental laws
often include incentives for the voluntary creation of such plans. For example, under Alberta’s
Environmental Protection and Enhancement Act, a person responsible for a contaminated site
may create a remedial action plan for the site, and get the Director’s approval of the plan and
an agreement on the action to be taken as to the contaminated site and the apportionment of
the costs of taking such action. If this agreement is carried out in accordance with its terms, the
Director may not issue an environmental protection order to any of the persons responsible for
the contaminated site who are parties to that agreement [Sec. 128(3)].
Bottom line: If you voluntarily create a remedial action plan, get it approved and comply with its
terms, you may avoid getting hit with an environmental order by the government. Considering that
you won’t have any control over the terms of such an order and those terms could be particularly
onerous, it may be in your best interest to proactively develop a plan for the site’s remediation
rather than waiting to be compelled by the government to clean up the site on its terms.
Step #4: Create Remedial Action Plan
If you’re going to create a remedial action plan—required or otherwise—the process can be
quite complex. For example, you’ll certainly have to conduct an environmental site assessment.
continued ON PAGE 3
May 2015 © Bongarde • www.environmentalcomplianceinsider.com
Environmental W Compliance Insider
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CONTAMINATED SITES continued FROM PAGE 3
(See, “Environmental Assessments: Part 1: When Must Your Company
Get One?” June 2009, p. 1 and “Environmental Assessments: Part 2:
Navigating the Assessment Process,” July 2009, p. 1.) Environment law
may specify how to prepare a remedial action plan or the government’s
environmental ministry may issue protocols to be followed in creating
such plans. Without such guidance in your jurisdiction, you should
consider other resources on remediating contaminated sites, such as
the Canadian Council of Ministers of the Environment (CCME). (See
the box below for links to some of these resources.)
Even if the environmental laws don’t specify how to prepare a
remedial action plan, they may specify what that plan must cover and
include. For example, Nova Scotia has a Remedial Action Plan Protocol,
which requires a remedial action plan to include:
77 Names and contact information of all key personnel;
77 A summary of all data collected on contaminants identified
during the environmental site assessments;
77 Description of contaminants of concern and the affected media,
such as soil, groundwater, sediment or surface water;
77 The selected remediation pathway, that is, limited remediation or
full property remediation;
77 Identification of the remediation criteria in accordance with
protocol PRO-500, Remediation Levels Protocol, which will form
the basis for confirming completion of remediation;
77 Detailed description of the remediation to be conducted,
including consideration of physical/chemical limitations,
construction requirements and environmental implications;
Insider Says: In many cases, multiple parties are considered “persons responsible
for a contaminated site.” For example, both the current and prior owners of the
property in question may be responsible persons. In such cases, in addition to
the remedial action plan, you may need or want to develop an agreement with
the government and/or any other responsible parties as to the remedial action to
be taken as to the site and how the related costs will be apportioned.
Step #5: Get Plan Approved
In most jurisdictions, you must get your remedial action plan—and
often any related agreement as to the plan with other responsible
parties—approved by the appropriate environmental ministry. Your
submission must be in the form specified by environmental law and
contain all required information. After reviewing your application for
approval, the government will generally either:
77 Approve the remedial action plan and any agreement;
77 Reject the plan and any agreement; or
77 Require changes be made to the remedial action plan and/or the
agreement to get approval.
Step #6: Implement the Plan
Once your remedial action plan has been approved, you must implement
it and take the remediation actions specified in the plan, such as removing
contaminated soil or the sources of contamination. And if your plan
includes any deadlines, you must meet those deadlines. For example,
under Yukon’s Environment Act, work authorized by the Minister must be
performed in accordance with the “plan of restoration” and the timetable
provided, unless otherwise authorized by the Minister [Sec. 114(9)].
77 Description of any control measures and contingency plans to
mitigate potential adverse effects to adjacent and on site receptors;
Failure to comply with the terms of your plan or the related agreement
is a violation of environmental law. For instance, Nova Scotia’s
environmental law specifically says that a person responsible for the
contaminated site who violates a term of an agreement related to the
remedial action plan for that site is guilty of an offence [Sec. 89(5)].
77 Where soil vapour and indoor air sampling are conducted,
confirmation that the latest version of the Atlantic RBCA “Guidance
for Soil Vapour and Indoor Air Monitoring Assessments,” as
referenced in protocol PRO-500 has been followed;
If your company is a party responsible for a contaminated site, it may
be required to develop a remedial action plan for cleaning up the site.
And if not, it’s still likely that at some point, you’ll be compelled to
create such a plan or agree to a plan created by another responsible
party for the site. In either case, you should be aware of the remedial
action plan requirements and ensure that you take appropriate steps to
comply with them. W
77 Documentation and derivation of any site specific target levels
calculated in a risk assessment in accordance with protocol PRO500, including use of Atlantic RBCA methodology for petroleum
hydrocarbons;
77 Any intended subsurface injections, including microbial solutions,
oxygen release chemicals, chemical oxidizing solutions, etc.;
77 Remedial verification and long-term monitoring plans (if required)
to measure the progress of restoring the environment to the goals
identified;
77 In cases of conditional closure, a Risk Management Plan
describing long-term exposure management measures;
77 Any impacted soil, sediment, groundwater or surface water
not treated on-site under the plan must be sent to an approved
treatment or disposal site; and
77 Any backfill material that’s used must be of acceptable quality
and must meet remediation criteria for the site.
BOTTOM LINE
Resources for Developing Remedial Action Plans
Here are some resources that may help you develop a remedial action
plan for a contaminated site:
77
77
77
77
77
77
77
CCME’s Contaminated Sites resource page
Fed: Federal Contaminated Sites Portal
AB: Guide to Remediation Certificates for Contaminated Sites
BC: Contaminated Site Guidance and Resources page
MB: Submission of Remediation Plans for Impacted and Contaminated Sites
NL: Guidance Document for the Management of Impacted Sites
NS: Remedial Action Plan Protocol.
May 2015 © Bongarde • www.environmentalcomplianceinsider.com
Environmental W Compliance Insider
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NEW LAWS
The New Supplier Label Requirements under WHMIS 2015
T
he federal government recently published the final Hazardous
Products Regulations (HPR), which implement the GHS in
Canada. (For details, see “Law of the Month”: Final Regulations
to Implement the GHS in Canada Published,” April 2015, p. 1.) Among
other things, the new WHMIS, called “WHMIS 2015,” contains new
requirements for supplier labels. Suppliers may comply with the label
requirements of either “old” WHMIS (now referred to as WHMIS 1988)
or WHMIS 2015 until May 31, 2017. After that date, manufacturers and
importers must comply with the WHMIS 2015 label requirements.
Here’s an overview of the new supplier label requirements.
BASIC REQUIREMENTS
Most of the label requirements are contained in Part 3 of the HPR.
Suppliers—defined as persons who, in the course of business, sell or
import a hazardous product—must prepare labels and provide them
to purchasers of hazardous products intended for use in a workplace.
Labels must be accurate at the time of each sale or importation of the
hazardous product. They must be updated within 180 days of when
new significant information about the product becomes available. And
until the label is updated, the new information and date upon which it
became available must be sent in writing by the product’s seller to the
person who acquires it.
COMPARISON OF GENERAL SUPPLIER LABEL ELEMENTS
WHMIS 1988
Product identifier
Product identifier
Supplier identifier
Supplier identifier
Pictogram
Pictogram
Risk Phrases
Hazard statement
N/A
Signal word
Precautionary measures
Any applicable precautionary
statements, including:
77 General precautionary
statements
77 Prevention precautionary
statements
77 Response precautionary
statements
77 Storage precautionary
statements
77 Disposal precautionary
statements
First aid statement
Incorporated in the
precautionary statements
N/A
Where applicable,
supplemental label elements
based on the classification
of the workplace hazardous
chemical
Hatched border
No
Supplier labels must be durable and legible without the aid of any
devices other than corrective lenses. In addition, the HPR spells out:
What information or elements must be included on a supplier
label. See the chart on the right for a comparison of the required label
elements under WHMIS 2015 and WHMIS 1988. Although the basic
elements of the two labels are similar, some of the specifics are different.
For example, although both require the use of pictograms, WHMIS
2015 adopts the GHS pictogram format of a black symbol on a white
background with a red frame in the shape of a square set on a point.
Note that two elements of supplier labels from WHMIS 1988 have been
dropped:
77 The hatched border around the label content; and
77 A statement to the effect that a material safety data sheet (now
referred to as safety data sheets or SDS) is available.
Attend a FREE Webinar on WHMIS 2015
On May 6, 2015, we’ll be hosting a webinar, "WHMIS
2015: What Canadian Employers Need to Know" with
Dr. Mike Moffat of Nexreg Compliance Inc. Attendance is
free—just register online.
May 2015 © Bongarde • www.environmentalcomplianceinsider.com
WHMIS 2015
How the label should appear. For example, the pictogram, signal
word and hazard statement must be grouped together on the label.
What languages are used on the label. The informational
elements on a supplier label should be in both English and French. The
elements may appear either on a single bilingual label or in a group
of information elements in two unilingual parts that constitute one
bilingual label.
Exceptions to the label requirements. For example, bulk
shipments of a hazardous product aren’t subject to the label
requirements. W
Environmental W Compliance Insider
5
Month in Review
A roundup of important new legislation, regulations,
government announcements and court cases
CASE OF THE MONTH (cont'd from page 1)
BC Case Illustrates Difficulty in Proving ‘Innocent Acquisition’ Defence
THE CASE
What Happened: Residential property was contaminated by oil from
a decommissioned underground oil tank on neighbouring property. The
tank corroded and perforated, allowing the remaining oil in it to escape
and migrate. The residential property owner sued the current owners
and former owners of the neighbouring property for nearly $33,000 in
remediation costs already incurred and an estimated $90,000 to complete
the remediation. The defendants raised the innocent acquisition defence.
What the Court Decided: The Supreme Court of BC rejected the
innocent acquisition defence. It ruled that the current owners were
minor contributors who were 15% liable for the remediation costs,
while the former owners were 35% and 50% liable.
The Court’s Reasoning: The court noted that the innocent
acquisition defence is enshrined in Sec. 46(1)(d) of the Environmental
Management Act. The Contaminated Sites Regulation explains that
when considering whether a party undertook all appropriate inquiries
into the previous ownership and uses of a site, and other investigations
consistent with good commercial or customary practice, the court
must consider the following:
77 Any personal knowledge or experience of the owner as to
contamination at the time of the acquisition of the property;
77 The relationship of the actual purchase price to the value of the
property if it was uncontaminated;
77 Commonly known or reasonably ascertainable information about
the property at the time of the acquisition; and
77 Any obvious presence or indicators of contamination, or the
feasibility of detecting such contamination by appropriate
inspection at the time of the acquisition.
Here, the court found that neither the former or current owners
could rely on the innocent acquisition defence. It explained that the
ANALYSIS
Most jurisdictions have some version of the innocent acquisition
defence, which is a sort of corollary to the polluter pays principle. In
essence, the idea behind the defence is that while polluters should pay
for the pollution they cause or contribute to, innocent people who buy
land without knowing it’s polluted and having taken reasonable steps
to discover any pollution should not pay for such pollution. But as the
Dolinsky case shows, the standard for proving the innocent acquisition
defence is fairly high and looks at not only what the parties actually
knew about the contamination but also what they should’ve known.
For example, the court in Dolinsky criticized the former owners for
“turning a blind eye” to the contamination. The lesson: When acquiring
property, conducting appropriate and adequate environmental inquiries
and investigations is critical. W
LAWS & ANNOUNCEMENTS
April 6: New Moose Management Plan Announced
NL
NS
CASES
March 24: Feedback on Proposed Changes to Waste
Management Regs Released
The Environment Department released a report on the
feedback received on proposed changes to the solid waste
management regulations. The program requires businesses
to take responsibility for the cost of recycling their products.
In general, comments were positive and most participants
supported expanding producer responsibility to more products.
The department will continue to engage with interested groups
on the amendments to be given to government later this year. If
approved, changes would be phased-in over the next five years.
former owners admitted that before buying the neighbouring property,
they waived the requirement for a property disclosure statement, didn’t
conduct any of the inquiries recommended by the property inspector
as to the possible presence of an underground tank and didn’t make
inquiries of any kind as to contamination. Also, by the time they bought
the property, the contamination on the residential property had already
been discovered, and warning signs and delineation cones had been
displayed. Thus, the former owners knew or ought to have known that
their property was also contaminated. In addition, after they bought the
land, they were specifically told about the contamination and did nothing
about it. As to the current owners, by the time they bought the property
in question, the contamination was no longer a latent defect but a patent
one. That is, explained the court, there was reasonably ascertainable
information available about the property, including media reports
on the contamination and an active MOE investigation into it. So the
current owners also knew or should’ve known about the contamination
[Dolinsky v. Wingfield, [2015] BCSC 238 (CanLII), Feb. 19, 2015].
The government announced a new five-year moose management
plan, which will see greater collaboration between departments and
draw upon scientific research and moose-vehicle collision statistics to
create a long-term, coordinated approach to moose management. As
part of this regional approach, the government will:
77 Increase quotas along many of the Moose Management Areas
that border the Trans-Canada Highway, particularly in areas
where statistics indicate high rates of moose-vehicle collisions
77 Implement two Moose Reduction Zones.
May 2015 © Bongarde • www.environmentalcomplianceinsider.com
6
Environmental W Compliance Insider
ALBERTA
FEDERAL
LAWS & ANNOUNCEMENTS
April 8: Report Has Recommendations to Improve Tanker
Safety
The federal government released the second report of the
independent Tanker Safety Expert Panel. The report, “A Review
of Canada’s Ship-source Spill Preparedness and Response:
Setting the Course for the Future, Phase II – Requirements
for the Arctic and for Hazardous and Noxious Substances
Nationally,” concludes there are opportunities to enhance
Canada’s prevention, preparedness and response requirements
to better protect the public and the environment. It includes
recommendations for the:
77 Arctic
77 Hazardous and noxious substances
77 Management of marine casualty incidents.
April 13: NEB Launches Pipeline Incident Map
The National Energy Board launched an online interactive
Pipeline Incident Map that identifies all pipeline incidents in
Canada since 2008. The map includes customizable filters
and incident details including location, company and volumes
released. Updates to the map will occur quarterly. And as
incident investigations are completed or new information
becomes available, records will be updated and reflected on
the map.
CASES
Well Servicing Company Penalized $185,000 for Diesel Spill
A broken plastic tube attached to an out-of-service diesel tank
owned by a well servicing company allowed 300-600 litres of
diesel to spill onto the ground. An unknown amount of fuel made
its way into nearby Blackmud Creek. The company pleaded guilty
to depositing a deleterious substance into water frequented by
fish in violation of the federal Fisheries Act. It was fined $5,000
and ordered to pay $180,000 to the Environmental Damages Fund
[Ensign Well Servicing Inc., Govt. News Release, April 9, 2015].
Director of Dry Cleaners Fined $10,000 for PERC Violations
During an inspection, Environment Canada enforcement
officers discovered that a dry cleaner had improperly stored
and contained tetrachloroethylene, commonly known as PERC.
The director of the dry cleaners pleaded guilty to violating
the Tetrachloroethylene (Use in Dry Cleaning and Reporting
Requirements) Regulations under CEPA, 1999. He received
two mandatory minimum fines of $5,000 each [Larry Saretzky,
Govt. News Release, April 2, 2015].
CASES
Crude Oil Spill Results in $125,000 Penalty
Crude oil spilled from an emergency overflow tank. In total,
an estimated 6,000 litres of crude oil was released, of which
approximately 750 litres entered Sneddon Creek, a tributary
to the Peace River. Environment Canada enforcement officers
concluded that the spill was caused by valves that were left
open. The company responsible for the tank also failed to
ensure that operational procedures were followed. It pleaded
guilty to violating the Fisheries Act by releasing a substance
harmful to fish into fish-bearing waters. It was fined $12,000
and ordered to pay $113,000 to the Environmental Damages
Fund [Canadian Natural Resources Ltd., Govt. News Release,
March 17, 2015].
May 2015 © Bongarde • www.environmentalcomplianceinsider.com
NU
CASES
Pipeline Company Hit with $200,000 in Administrative
Penalties
The National Energy Board imposed administrative penalties
totaling $200,000 on a pipeline builder for safety and
environmental hazards related to maintenance work on the
Line 3 oil pipeline. The penalties were for failing to comply with
a term or condition of any certificate, licence, permit, leave or
exemption granted under the NEB Act relating to how erosion
was dealt with during a period of heavy rains and failing to
follow through on environmental protection commitments
[Enbridge Inc., March 24, 2015].
PEI
MANITOBA
LAWS & ANNOUNCEMENTS
April 2: Deadline for Comments on Proposed Waste
Management Regulation
The government requested input from the public on the
proposed Waste Management Facilities Regulation, which
addresses all solid waste management facilities and outlines
technical and environmental requirements for development,
operation, monitoring and reporting for such facilities.
Comments were due by April 2, 2015.
LAWS & ANNOUNCEMENTS
March 2: Application Requirements for Energy
Resource Activities Not in Effect
New application requirements set out in the Joint Operating
Procedures for First Nations Consultation on Energy Resource
Activities were scheduled to take effect on March 2, 2015. But
in Bulletin 2015-10, the Alberta Energy Regulator announced
that it was delaying implementation of the declaration and
application requirements “until further notice.” However, other
application requirements continue to apply.
March 30: Enforcement Order Issued over
Unauthorized Landscaping
A company representing a couple was refused a permit under the
Water Act to fill in a wetland on their land. But they hired contractors
to fill, grade and level the wetlands anyway. The completed work
caused harm to the wetlands and its aquatic environment. So the
government issued an enforcement order requiring them to:
77 Submit a complete wetlands restoration plan by June 1, 2015
77 Implement the approved plan with a completion date of
October 30, 2015
77 Submit a written final report of the work undertaken
within 30 days of its completion.
LAWS & ANNOUNCEMENTS
May 1: Deadline for Nominations for Environmental Awards
Nominations are being accepted for this year’s PEI
Environmental Awards. The deadline for nominations is May
1, 2015. Nominate an individual, organization or school that:
77 Plays a role in identifying, reducing, solving or avoiding an
environmental problem
77 Demonstrates consistent responsible environmental
management practices
77 Promotes public awareness, understanding and active concern
for the enhancement and protection of the environment.
LAWS & ANNOUNCEMENTS
March 30: Agreement Reached as to Hope Bay Belt Area
The Kitikmeot Inuit Association and TMAC Resources Inc. signed
a 20-year Inuit Impact and Benefits Agreement and land tenure
agreements for the Hope Bay Belt area in the Kitikmeot Region
of Nunavut.
Environmental W Compliance Insider
NB
LAWS & ANNOUNCEMENTS
March 24: Commission to Examine Feasibility of
Fracking Conditions
A new commission will determine whether government-placed
conditions can be met before a moratorium on shale gas
fracking can be lifted. The commission has been given up to a
year to complete its work. The conditions under review include
a plan for regulations, waste water disposal, a process to consult
First Nations, a royalty structure and a so-called “social licence.”
LAWS & ANNOUNCEMENTS
April 15: Deadline for Comments on Proposed WHMIS
Changes
The government is seeking feedback on proposed amendments
to the WHMIS regulations found in The Occupational Health
and Safety Regulations, 1996. These amendments will
align provincial law with the federal amendments to the
Hazardous Products Act and associated regulations that
implement WHMIS 2015. The Globally Harmonized System of
Classification and Labeling Consultation Guide contains the
proposed regulatory amendments. Comments were due by
April 15, 2015.
April 1: Portal for Environmental Farm Plan Announced
The federal and provincial governments announced a new
web portal for Saskatchewan’s Environmental Farm Plan
(EFP) program. The portal lets farm owners create, review and
update their EFPs online and at their own pace. In addition, the
Beneficial Management Practices (BMPs) available through
the Farm Stewardship Program have been enhanced. There
are now 24 BMPs under seven categories, including five new
BMPs and enhancements to seven existing BMPs.
April 1: Annual Ban on Pruning Elm Trees Begins
To reduce the risk of Dutch elm disease (DED), pruning of
elm trees is banned throughout Saskatchewan from April 1 to
August 31. Elm bark beetles that spread the disease are most
active during this time of year. Fresh cuts from pruning can
attract the insects and increase the chance of a DED infection.
Provincial regulations require commercial pruners of elm
trees to complete a recognized training program or be under
the supervision of someone who has.
CASES
Spill of Oil Containing PCBs Results in $87,000 in
Penalties
A spill of approximately 100 litres of oil containing PCBs from a
tractor trailer was discovered at a weigh scale. An Environment
Canada inspection determined that the truck lacked a proper
secondary containment system to prevent oil containing PCBs
from being released into the environment. Lab tests confirmed
that the oil released contained concentrations of PCBs at
approximately 200,000 times the minimum level subject to a
prohibition against release. Two companies pleaded guilty to
an offence under the federal CEPA, 1999. They were ordered
to pay a total of $87,000 to the Environmental Damages Fund
[Custom Environmental Services Ltd. and Aevitas Inc., Govt.
News Release, April 8, 2015].
NT
CASES
Environmental Group Denied Standing as to Expansion
of Coal Handling Facility
An environmental group challenged two decisions regarding
the proposed expansion of a coal handling and storage
operation on Texada Island. It argued that the Mines Act
regulated mines, not coal handling and storage facilities. But
the court ruled that the group didn’t have “public interest
standing.” This issue doesn’t raise a sustainable constitutional
issue or one of such public importance that it transcends
the interests of those directly affected, explained the court.
Granting standing to the group would potentially impact the
rights of others who are equally or more directly affected, such
as the First Nation that doesn’t oppose the project or other
residents of the island, who have deliberately refrained from
suing over it. So the court dismissed the lawsuit [Voters Taking
Action on Climate Change v. British Columbia (Energy and
Mines), [2015] BCSC 471 (CanLII), March 26, 2015].
SK
BRITISH COLUMBIA
LAWS & ANNOUNCEMENTS
April 20: Deadline for Comments to Proposed GHG
Reporting Regulation
The government asked for comments on a proposed reporting
regulation for the new Greenhouse Gas Industrial Reporting and
Control Act, which received royal assent on Nov. 27, 2014. The
proposed regulation adds requirements for LNG operations and
improvements based on stakeholder input to date. Comments
were due by April 20, 2015. The government is also in the process
of developing two other regulations on offsets and compliance.
All three regulations are expected to take effect by 2016.
March 19: New Requirements for Mines with Tailings Dams
In response to recommendations in the Mount Polley
Independent Expert Engineering Investigation and Review Report,
the Environmental Assessment Office announced additional
information requirements for mines undergoing environmental
assessments. The required information will ensure that companies
proposing to build mines with new tailings dams have:
77 In addition to the selected option for tailings management,
considered other options that can address the potential
for adverse effects on environmental, health, social,
heritage and economic values
77 For the option selected, considered the potential risks
and implications of that option and have a technically and
economically feasible plan to address them
77 Provided a clear and transparent rationale to support the
selected option.
April 12: Oil Spill in Vancouver Harbor Contained
A recreational boater in Vancouver Harbour reported a slick
around the bulk carrier Marathassa. A harbour vessel for the
Port of Vancouver confirmed an unrecoverable minimum sheen
in the Bay, but the Canadian Coast Guard determined the spill
was more serious. Several agencies carried out skimming and
securing boom around the vessel. About 80% of the spill was
not only contained, but also recovered within 36 hours.
7
LAWS & ANNOUNCEMENTS
June 29: Deadline for Comments on Proposed Fracking
Regulations
The government released the Hydraulic Fracturing Filing
Regulations and is seeking public comment on them until
June 29, 2015. The proposed regulations are based heavily
on existing NEB guidelines, but include four requirements
based on what the government says are the priorities of NWT
residents. Under the new requirements, an Applicant who
wants to conduct hydraulic fracturing (“fracking”) must:
77 Submit baseline surface and groundwater information
77 Indicate their willingness to disclose a pre-fracturing report
77 Describe what measures they propose to safeguard air
quality
77 Provide enhanced reporting.
May 2015 © Bongarde • www.environmentalcomplianceinsider.com
8
Environmental W Compliance Insider
ONTARIO
dust into the environment and failing to comply with the MOE’s noise
guidelines. The court fined it $350,000 [Essroc Canada Inc., Govt. News
Release, April 10, 2015].
Failing to Comply with Order Results in Company Fine and Jail
for Director
A company that operates under an MOE approval to transport
wastewater that’s generated from the processing of used cooking oil
and grease was convicted and fined $120,000 for twice depositing waste
oil/grease in a municipal ditch. The court also ordered the company to
pay $25,371.11 in restitution for the costs the city incurred to remove the
waste oil/grease and contaminated soil. But it failed to comply with the
restitution order. The company and its sole director were each convicted
of one offence under the Environmental Protection Act. The company
was fined $20,000. The court fined the director $5,000 and sentenced
him to five days in jail to be served on weekends [Green Diesel Canada
Ltd. and Julian Lothringen, Govt. News Release, April 7, 2015].
Cheese Company Fined $80,000 for Failing to Report Whey Spill
At a cheese manufacturer’s facility, ricotta cheese whey overflowed
from a silo, left the site and travelled to an adjacent field owned by
a neighbour. Approximately 1,200 litres of whey flowed into the field
towards a stream inhabited by minnows and invertebrates. The company
failed to notify the MOE of the spill and of the action that was taken or
intended to be taken as to the spill. In addition, the company violated its
C of A because the average concentration limit of Total Phosphorus in its
effluent exceeded the set limit. So the company was fined $80,000 for
failing to report the spill and breaching its C of A [Silani Sweet Cheese
Ltd., Govt. News Release, April 7, 2015].
Discharge of Chlorine Gas Results in $65,000 Fine
At a scrap metal yard, when workers attempted to separate compressed
gas cylinders from scrap metal using a magnetic grapple, a valve was
knocked off, releasing a yellowish-green cloud of chlorine gas. A worker
and a neighbour experienced ill effects from exposure to the gas. And
the scrap metal company didn’t report the spill to the MOE. It was fined
$65,000 for discharging chlorine gas into the natural environment
causing adverse effects and failing to notify the ministry [Priestly
Demolition Inc., March 31, 2015].
LAWS & ANNOUNCEMENTS
April 8: New Plan Nord Announced
The government announced a refocused Plan Nord that seeks
to reflect today’s economic realities and perceived heightened
sensitivities around social and environmental impacts. The new
Plan Nord has three overall objectives, including to protect the
environment and preserve the distinctive biodiversity of the
area by dedicating 50% of the area to non-industrial purposes,
environmental protection and the safeguarding of biodiversity.
May 21: Third Joint Carbon Auction with California to
Be Held
Provincial and California agencies announced that the third
joint carbon market auction will be held on May 21, 2015. The
publication of the Auction Notice, which includes the number
of emissions units for sale, minimum prices and application
requirements, marks the beginning of the application period,
which closed on April 21, 2015.
March 21: Wastewater Equivalency Agreement Reached
The federal and provincial governments reached an equivalency
agreement over the application of federal wastewater effluent
regulations in Québec. The agreement essentially says that
because provincial and federal regulatory requirements are
equivalent in effect with respect to municipally and provincially
owned wastewater systems, the federal regulations won’t apply
in Québec. The goal of such agreements is to reduce regulatory
duplication and increase regulatory clarity and efficiency.
LAWS & ANNOUNCEMENTS
April 9: Government Accepts Fracking
Recommendations
The government responded to the report of the Select Committee
Regarding the Risks and Benefits of Hydraulic Fracturing, accepting
all 21 recommendations. It’s open to responsible shale gas
development opportunities in Yukon, but only in the Liard basin
and only if shale gas development activity has the support of
affected First Nations. The government’s response to the report
includes:
77 Developing an engagement strategy to continue the public
dialogue
77 Conducting an economic study
77 Expanding the groundwater monitoring and seismic
baseline data
77 Seeking expert advice to confirm that baseline information
is adequate and that regulatory processes will protect
human health and the environment.
May 2015 © Bongarde • www.environmentalcomplianceinsider.com
YUKON
QUÉBEC
LAWS & ANNOUNCEMENTS
April 13: Province to Introduce Cap-and-Trade System
Ontario is implementing a cap-and-trade system that
imposes a hard ceiling on GHG emissions, rewards innovative
companies, provides certainty for industries and creates more
opportunities for investment. Under the system, businesses
will have their own GHG quota and will be able to sell it if they
don't need it because of their own efficiency. The province
intends to join the cap-and-trade system under the Western
Climate Initiative.
May 7: Deadline for Comments on Proposed Changes
to Pesticide Regulation
To protect pollinators such as bees, the government has
proposed changes to the pesticides regulation to address the
impact that pesticide exposure is having on pollinator health.
Comments on the proposed changes can be submitted until
May 7. The draft regulatory amendments would establish:
77 A new class of pesticides consisting of corn and soybean
seeds treated with the neonicotinoids, imidacloprid,
clothianidin or thiamethoxam
77 Rules for the sale and use of treated seeds
77 Timing and implementation of the regulatory
requirements.
CASES
Cement Company Fined $350,000 for Dust Discharge &
Noise Violations
A cement manufacturing facility surrounded by residential
and agricultural properties operated under an Environmental
Compliance Approval, which regulates all air emissions from the
site. The MOE received various complaints regarding discharges
of particulate emissions described as a brownish gray dust,
haze, fog, smoke or smog coming from the facility, and coating
personal property and area homes. The MOE also received
complaints about excessive noise from the plant, both day and
night. The company pleaded guilty to discharging particulate or
April 1: Changes to Fishing Regulations in Effect
The 2015-16 edition of the Yukon Fishing Regulations Summary is
now available online and at Environment Yukon offices across the
territory. There are some important changes to the regulations
that took effect April 1, 2015. Get more details and download a
digital copy here.
Environmental W Compliance Insider
9
CLIMATE CHANGE
C
How Climate Change Can Increase OHS Risks to Workers
limate change obviously impacts the environment. But it
also impacts humans, including workers. In fact, according
to the CDC, climate change can increase existing health
and safety risks and create new ones. Impacts to workers can
include the direct effects of climate change-related occupational
hazards such as increased ambient temperatures, air pollution and
extreme weather. In additional, indirect climate change-related
occupational hazards are likely to occur from emerging industries
(such as renewable energy, carbon capture and “green industries”),
increased use of pesticides and changes in the built environment.
OHS Risks Affected by Climate Change
According to the CDC and NIOSH, these are some of the OHS risks
that are affected by climate change:
Increased ambient temperatures. Higher temperatures or
longer, more frequent periods of heat may result in greater heat
stress, which may lead to more cases of heat-related illnesses
such as heat stroke or heat exhaustion. There may also be indirect
effects, including reduced vigilance regarding safety and increased
risk of injury and irritability that may lead to carelessness.
Air pollution. Elevated temperatures can increase levels of
air pollution including ground-level ozone. Outdoor workers
have longer exposure to air pollutants, which may be linked to
chronic health effects, such as respiratory diseases or allergies. In
addition, the frequency and severity of wildfires is projected to
increase, resulting in higher levels of particulate matter and other
air pollutants.
Extreme weather. Extreme weather events or natural disasters
such as floods, landslides, storms, lightning, droughts and wildfires
are becoming more frequent and intense. Natural disasters may be
associated with deaths, injuries and diseases. The impact of more
frequent and intense weather events on mental health and stress is
another consideration.
Workers involved in rescue and cleanup of workplaces after
natural disasters are exposed to risky conditions, such as mould
and electrocution. Extreme weather events may also cause damage
to infrastructure and buildings, making workplaces themselves
more hazardous. And disruptions to information technology could
lead to standards of control not being applied or the inability to
recognize hazards. Carbon monoxide poisoning may also be an
issue if emergency generators are run with poor ventilation.
Diseases and allergies. Changing temperatures and shifting
rainfall can affect habitats of vectors, pathogens, hosts and
allergens. Increased prevalence and distribution of water-borne and
food-borne pathogens could affect workers, particularly emergency
responders and healthcare workers. Pollen may increase from
earlier flowering and longer pollen seasons. Increasing numbers of
hurricanes and floods could lead to more buildings with mould,
which may lead to allergic as well as non-allergic or irritant asthma.
Increasing temperatures and carbon dioxide in the atmosphere
may increase the growth and wider distribution of poison ivy and
other poisonous plants. Changes in temperatures have also affected
ticks and mosquitos, increasing their populations, extending their
transmission seasons and expanding the seasons and areas they
can be found. As a result, outdoor workers may be at increased
risk for mosquito-borne diseases (such as West Nile virus) and
tick-borne diseases (such as Lyme disease). Lastly, expanded vector
ranges and the introduction of diseases not previously prevalent in
the US or Canada (such as dengue and chikungunya viruses) will
result in the increased use of pesticides, potentially placing workers
at increased risk for exposure.
Industrial transitions and emerging industries. Climate
change may impact various industries. For example, extreme
weather events and damaged infrastructure and buildings may
negatively impact the economy and employment, resulting
in job insecurity and affecting worker health. Industries that
offer “greener” technologies may grow and be a source of new
employment, although they may also have occupational hazards
that will need to be identified and eliminated or controlled.
Changes in the built environment. High temperatures
increase the need for climate-controlled buildings. Building-related
illnesses (such as sick building syndrome), may develop, especially
in buildings with air conditioning, water damage or energy-efficient
“tight” buildings with microbial-contaminated humidifiers or air
handlers that use biocides. Tight buildings may also lead to radon
buildup in work areas, such as smaller rooms, storage areas or
offices. Many industrial settings, such as paper mills, aren’t climate
controlled and so the higher temperatures resulting from climate
change will increase heat exposure for these workers. W
Framework for the Relationship
Between Climate Change & OHS
On the next page is a framework for considering the relationship
between climate change and occupational health and safety.
This framework outlines the multidisciplinary research needed
to better understand workers at risk by hazard, occupation and
geographic location.
May 2015 © Bongarde • www.environmentalcomplianceinsider.com
Population
growth
May 2015 © Bongarde • www.environmentalcomplianceinsider.com
Pulmonary
toxicants
Ozone
exposure
Increased
air
pollution
Fatigue
Heat
stress
Increased
chemical
intolerance
Cardiovascular
disease
Respiratory
disease
Occupational Health Effects
Higher
average
temperature
More hot days
Increased
ambient
temperature
Hazards/Exposures
Contexts
Immune
dysfunction
Eye effects
Acute
death
Traumatic
injuries
Plants
Mental
stress
Unknown
New
hazard
scenarios
Job
insecurity
Industrial
transitions
& emerging
industries
Lung
cancer
Tight
building
syndrome
Increased
radon
More
tight
buildings
Changes
in the built
environment
Urbanization/
Deforestation
Dermatitis
Musculoskeletal
disorders
Cardiovascular
Infectious
disease
diseases
Mental stress
Allergies/
asthma
Molds/
allergens
Pathogens
Insects
Vector-borne
diseases &
expanded habitats
Carbon
monoxide
More workers
out in severe
weather
More
clean-up
Extreme
weather
Global Climate
Change
Local Conditions/
Socioeconomic circumstances
Lightning
Skin
cancer
UV
radiation
Energy
policies
Framework for the Relationship Between Climate Change & OHS
Source: CDC
ƒƒ Develop leading indicators
of climate-potentiated health
effects
ƒƒ Modify risk assessment
methods
ƒƒ Collaborate with
environmental
scientists/"green movement"
•• Expanded surveillance
•• Risk communication
•• Occupational Exposure
Limits
•• New Hazard controls/
guidance
ƒƒ Develop:
ƒƒ Identify numbers of workers
exposed
ƒƒ Conduct new research
linking climate and
occupational diseases
Impact on Occupational Safety and
Health Research and Practice
10
Environmental W Compliance Insider