contaminated sites - Environmental Compliance Insider
Transcription
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 [email protected] 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 Environmental Compliance Insider is published by Bongarde Holdings Inc. and is intended for in-house use only – commercial reproduction is a violation of our copyright agreement. To order a subscription to Environmental Compliance Insider $397/12 months - please call our customer service centre at 1-800-667-9300. Fax 1-250-493-1970 or visit our website at www.environmentalcomplianceinsider.com Publications Mail #40065442. for EL NIC PUB TRO LI EC SH NDATIO FO U N EDITORIAL EXCELLENCE AWARD WINNER S ER WSLETTER NE & Printed in Canada. 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 3 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 4 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 Develop leading indicators of climate-potentiated health effects Modify risk assessment methods Collaborate with environmental scientists/"green movement" •• Expanded surveillance •• Risk communication •• Occupational Exposure Limits •• New Hazard controls/ guidance Develop: Identify numbers of workers exposed Conduct new research linking climate and occupational diseases Impact on Occupational Safety and Health Research and Practice 10 Environmental W Compliance Insider