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What’s New
Changes require more Aboriginal input in environmental assessments and projects
By Lisa Wichmann
May 27, 2013—Aboriginal engagement isn’t a new concept, but court cases and legislative changes over the past year are giving it far more emphasis than it’s had in the past—with potential Canada-wide impacts on environmental assessments.
One recent case involved an Aboriginal group that claimed it wasn’t properly consulted by the project owner.
The case—described by Osler— involved a claim by the Conseil des Innus de Ekuanitshit that it wasn’t adequately consulted by Nalcor Energy on the Lower Churchill Hydroelectric Generation Project in Labrador.
According to Osler, Nalcor had offered $87,500 to the applicant as financial assistance to allow it to participate in consultations. The applicant refused the offer and asked for $600,000. The consultation process eventually stalled.
The Federal Court of Canada dismissed the application in April 2013, but the case clearly demonstrates how environmental consultants and project owners may be required to defend the amount and quality of Aboriginal consultations, according to Osler.
The issue isn’t likely to recede anytime soon, given governments in Canada are beginning to include more language around Aboriginal engagement in policy and legislation.
Mining and energy
The Ontario government in May 2013, for instance, announced a goal to change the way large energy projects are planned, sited and built, in part due to lessons learned from the cancelled gas plant in Oakville, Ont.
Ontario Energy Minister Bob Chiarelli is asking for a more regional approach, with Aboriginal input.
“The recommendations you develop should contain concrete proposals that…feature transparent mechanisms for seeking input from municipalities, Aboriginal communities, and other stakeholders…,” wrote Minister Chirarelli, in a May 8 letter to the Ontario Power Authority and Independent Electricity System Operator.
The two organizations have a deadline of August 1, 2013 to come back with recommendations.
Ontario is also boosting Aboriginal consultation requirements for mining companies, according to the law firm Fraser Milner Casgrain LLP (now part of Dentons).
The firm has been analyzing the impacts of new Aboriginal consultation requirements in the Ontario Mining Act, the Far North Act, and the Mining Class Environmental Assessment regime.
The changes aren’t contained to Ontario. The firm points to the effects of the overhauled Canadian Environmental Assessment Act (CEAA) in 2012, and its broader definition of “impact” on Aboriginal communities.
The old Act referred to "the current use of lands and resources for traditional purposes by Aboriginal Peoples,” the firm’s authors wrote in an article analyzing the change.
The new Act, however, expands the criteria to include ‘health and socio-economic conditions; physical and cultural heritage; and structures of historical, archaeological, paleontological or architectural significance’.
“While each of these environmental effects is included in the [old] version of CEAA, assessment of their impact on Aboriginal peoples was not as explicitly required as under the [new] amendments,” the authors wrote.
Housing and development
Also significant is the addition of Aboriginal engagement in the September 2012 draft policy update from the Ontario Ministry of Municipal Affairs and Housing. Its new “Provincial Policy Statement Review” outlines goals to include Aboriginal interests and groups in planning and development.
The previous policy update (2005) had no language on Aboriginal interests, said Leigh Whyte, founder of PLW Planning & Environmental Consulting (Fort Erie, Ont.) As a consultant, Whyte represents both Aboriginal groups and project proponents.
“When I started the business 20 years ago [the industry] was less sympathetic to the Aboriginal side of the situation,” Whyte said. “Consultation consisted of writing a letter and saying ‘get back to us in 30 days; otherwise we assume you agree with us’. And now it’s just far more sophisticated than it ever has been.”
As Aboriginal engagement climbs higher up governments’ priority lists, consultants and project owners must ensure they have robust protocol.
“If it’s not done properly [government] can insist that it’s done properly after the fact, which is going to cost time and money,” Whyte cautioned. “Proponents, Aboriginal groups and consultants are all increasingly aware of this.”
Lisa Wichmann is an editor with Business Information Group.
Reliable remediation starts with thorough, accurate records. As your land records partner, ERIS provides current and historical environmental risk information for real estate. The ERIS system electronically accesses more than 470 federal, provincial, and private sector databases, providing you with a convenient, affordable one-stop resource for all your reporting needs.
Contact Mark Mattei or Matt Thompson at (416) 510-5204 or via email info@eris.ca. Try a sample real estate search on the ERIS home page: www.eris.ca
ERIS Expands Into the U.S. to Become the First Environmental Data Provider for All of North America
ERIS is proud to be the first company to provide environmental risk information services for both Canada AND the United States. Since 1997, ERIS has delivered accurate, affordable, on-demand database research services throughout all the Provinces and Territories, and now is expanding south to offer the same leading services to U.S. customers. Meeting criteria set by the Canadian Standards Association (CSA), as well as the American Society for Testing and Materials (ASTM), ERIS looks forward to serving all environmental risk information requests throughout the entire continent. Look for our new website soon!
Fracking legislation to impact reporting and water management
By: Rebecca Reid
April 29, 2013—Environmental legislation for fracking has been slow to develop, but rules emerging in the US will likely find their way into Canada soon, say observers.
One significant change will involve disclosure of project details, said Wally Braul, partner with Bennett Jones LLP in Calgary.
He was speaking at a panel on fracking at the University of Toronto in April.
Panelists also included a geologist and a representative from the Canadian Association of Petroleum Producers (CAPP).
Though it’s not yet the dominant practice, legislation is trending towards requiring owners to disclose fracking fluid make-up prior to the start of operations, Braul said.
“I would suspect the pressure will mount in Canadian jurisdictions to do the same thing.”
Braul said a web site used by 10 US states called FracFocus.org, is satisfying public demand for details on fracking fluid. The site takes a neutral position on fracking, but provides a means for participating companies to post details on operations and wells. BC uses a Canadian version (fracfocus.ca), which Alberta may also join, Braul said.
The information would otherwise only be accessible through access to information channels.
Another interesting development in reporting is speed, he added. In some cases, operators are required to upload fluid usage data in real time, so it’s in front of regulators within minutes.
Water management plans
Water management is also an area of focus for regulators. Pennsylvania now requires water management plans to protect aquifers, and New York has tabled the idea. The approach requires additional environmental assessment and a water management plan, Braul explained.
“It’s not a project-specific analysis; it’s an aquifer-based analysis. The concept has gained traction.”
BC is an example of a province lacking regulations for volume licensing for groundwater, but legislation will likely crop up should there be a change in provincial governments, Braul said.
“That will have pragmatic implications for producers.”
Regulators are paying close attention to rules governing well integrity in shallow zones, to prevent contamination. Cases of alleged environmental contamination heading to the courts this year and next will also shape fracking regulations in both the US and Canada, he concluded.
Yet some wonder if regulations are already becoming a moot point. Shale gas drilling is past its production peak in North America, said Andrew Miall, a professor with the University of Toronto’s department of earth sciences, who also spoke on the panel.
Miall said volumes of natural gas have been overstated by industry, and initial projections are inaccurate, because the vast majority of natural gas trapped in rock formations is inaccessible, even with fracking. Resources will be exhausted in about two decades, he said.
The best parts of the Barnett (central Texas) and Marcellus (eastern US) shale formations—two of the largest in North America—have already been tapped out, he added.
In Canada, natural gas fracking is focused in the Horn River Basin in BC, and the Montney shale formation along the Alberta/ BC border.
Sites with potential include the Utica formation which runs under the eastern US, into parts of Quebec and Ontario, and the Colorado Group, spanning Alberta and Saskatchewan into Montana. The Horton Bluff is another potential site, running through Nova Scotia and New Brunswick, according to CAPP.
Though public outcry has mounted as drilling increased, CAPP’s position is the industry’s safety record speaks for itself.
There have been 175,000 wells fractured in Alberta and BC combined—and 49 in New Brunswick—without any reports of drinking water contamination, the association reported.
In terms of contamination, Miall emphasized the importance of determining whether contaminated groundwater contains biogenic gas that naturally occurs close to the surface, or the thermogenic gas extracted during drilling.
It’s common for biogenic gas to seep laterally into a groundwater well if it’s dug close to a swamp or stagnant pond, Miall said, adding tests can determine the difference.
Despite signs fracking may be winding down in North America, public clamoring for regulations is only intensifying. Quebec has declared a moratorium on fracking, pending further study, and fracking has been highly criticized in New Brunswick—putting environmental consultants and project owners on watch for new regulations coming soon.
Rebecca Reid is an online contributor with Business Information Group.
Reliable remediation starts with thorough, accurate records. As your land records partner, ERIS provides current and historical environmental risk information for real estate. The ERIS system electronically accesses more than 470 federal, provincial, and private sector databases, providing you with a convenient, affordable one-stop resource for all your reporting needs.
Contact Mark Mattei or Matt Thompson at (416) 510-5204 or via email info@eris.ca. Try a sample real estate search on the ERIS home page: www.eris.ca
Industry braces for change to BC’s Environmental Management Act
Government set out to abolish limitation periods for claims
March 27, 2013—The government of BC is making changes to legislation on limitation periods for environmental cost recovery. The amendments to the
Environmental Management Act are leading to questions and uncertainty, according to stakeholders.
Earlier this year, the Act was amended to get rid of any limitation period to recover the cost of environmental remediation. The change (section 36) was to come into effect on June 1, 2013, but a new order this spring will see the section put on hold—to the industry’s relief.
“It looks like we have a victory here in that this amendment isn’t going to come into force starting June 1, but there are still some additional questions that need to be answered,” says Laura Gill, a Calgary-based associate with the law firm Bennett Jones, which has been following the issue.
Had it passed, a wide range of ‘responsible persons’—including transportation companies hired to haul waste, and current and previous owners and operators—would have been exposed to future claims on remediated sites, regardless of the passage of time, according to the firm.
“It creates unlimited uncertainty,” says Gill. “At any time, somebody could bring an action to recover costs, even if remediation of a site has been completed.”
The Act takes a broad definition of responsible persons, she adds, leaving multiple individuals and companies at risk.
“It means you’re unable to predict what future liability may be associated with those categories of responsible persons.”
Though section 36 is on hold, other amendments coming into effect on June 1 will impact the remediation industry, she adds. “That’s something the industry and [Canadian Bar Association] are going to have to take a closer look at.”
Bennett Jones is tracking developments and expects to post an
update on its blog in April.
Reliable remediation starts with thorough, accurate records. As your land records partner, ERIS provides current and historical environmental risk information for real estate. The ERIS system electronically accesses more than 470 federal, provincial, and private sector databases, providing you with a convenient, affordable one-stop resource for all your reporting needs.
Contact Mark Mattei or Matt Thompson at (416) 510-5204 or via email info@eris.ca. Try a sample real estate search on the ERIS home page: www.eris.ca
ERIS Has a New Report Format!
After operating on the same platform for the past 14 years, ERIS needed to upgrade its software to facilitate accessing complex data and meet client expectations.
This upgrade enabled us to deliver a new, user-friendly report to our clients.
Our new report format neatly organizes and streamlines report data, giving you easy access to the information you’re looking for.
NEED TO KNOW FACTS:
- Functions within the Database Report are best optimized with Adobe 11, but will also work with Adobe 7 or higher.
- Interactive links allow you to easily toggle between sections of the document. You can move from the Executive Summary to the Detail Report, and to Database Descriptions. Links are highlighted in blue.
- Adobe Bookmarks (open side bar view) organize each section of the report for you, essentially creating an interactive table of contents. You can go directly to your page of choice, and access the details and interactive links within.
- You Get More Data! Our new report format now includes elevation data indicating the difference and distance of each record from the subject site.
We hope that you will find the new format more interactive and user-friendly.
There is no doubt that there will be a period of adjustment, getting familiar with the new format, however, we welcome your comments and suggestions for improvement.
COMING SOON
We are continuously striving to add client requested improvements.
Within the coming weeks, watch for notification regarding:
- Map Key links to the Detail Report
- Map layers that turn on and off
- An instant standard report – on your desktop within a few minutes.
Environmental assessment risk: Consultants facing fines, charges and personal liability
Recent fines and court cases across Canada underline the stark environmental assessment risks faced by consultants. From providing false information to failing to prove due diligence, consultants can be held personally responsible for environmental transgressions.
In Guelph, Ont. last October, a consultant was fined $1,000 for providing false information to the Ministry of Agriculture and Food and Rural Affairs.
The consultant’s nutrient management strategy indicated milk-house wastewater was handled on site in a holding tank and septic bed. Ministry inspections revealed the wastewater was discharged directly into a municipal ditch.
According to reports on the case, the consultant claims he took his client’s word on the set-up of wastewater-holding facilities at the site.
In Alberta, a decision in December 2012 saw an environmental consultant face multiple charges under the province’s Water Act.
Ulliac Oilfield Consultants Ltd. and owner Jason Ulliac were charged with 10 counts under the Act for allegedly providing false or misleading information about the volume of water diverted from five different water sources for oil sands projects.
Increasingly complex
Environmental regulations on spills, discharges, remediation and reporting requirements make for increasingly complex and often—controversial—opinions.
Negligence, nuisance, trespass and the consequences of misinterpreting or failure to prove due diligence may result in government orders, civil lawsuits, high fines and even criminal charges—spanning all levels of government.
Given the risk, it’s imperative those working in environmental consulting fully understand their vulnerability and how to protect themselves if faced with this legal challenge.
ERIS is sponsoring a one-day Environmental Consultant Liability event (presented by EcoLog) to address the legal implications and impacts consultants face personally and corporately. It will also provide proven protection strategies.
Delegates will hear from experts in environmental law and government bodies, with a focus on regulatory orders, civil liability and criminal implications. Legal experts will present panel discussions on risk assessment and case studies focused on examples and solutions.
Space is limited so register now to save your seat!
New site characterization guidelines on the way
JANUARY 29, 2013—The Canadian Council of Ministers of the Environment (CCME) plans to release updated site characterization guidelines in 2014. The updates are expected to help federal departments better assess the environmental and health risks posed by contaminated sites across Canada.
They include a general guidance manual (Volume 1), checklists (Volume 2), and suggested operating procedures (Volume 3).
Subjects covered by the review include:
• the site investigation process;
• conceptual site models for contaminated sites;
• quality assurance/quality control;
• sampling of soil, vapour, indoor air, groundwater, surface water, sediment, and biological tissue.
Why now?
The review was started because the current guidelines are outdated but still frequently referenced, says Gwen Waedt, programs coordinator of environmental quality guidelines for the CCME.
“Many of the analytical methods described have since been replaced with improved techniques, and new approaches to sampling are not reflected,” she explains. “The new manual will provide Canada-wide guidance on sampling and analysis by adopting and in some instances, modifying existing guidance where necessary, along with the development of new guidance.”
A public review and comment period on the first three volumes closed in November, 2012. The follow-up is a revised draft Volume 4, consisting of a compendium of analytical methods, which has “just been completed,” according to Waedt. After an internal review, it will be posted to the CCME website, likely in the late spring.
A roadmap for risk
Detailed site characterization helps to significantly reduce the risk of unforeseen expenses for cleanup or hidden liabilities associated with contaminants in soil, sediment, ground or surface water.
The process usually begins with a Phase 1 environmental site assessment (ESA), involving a thorough site inspection and historical review. Depending on the findings, a Phase 2 assessment might be triggered, including sampling and site characteristics (chemicals, contamination and concentrations).
Based on the findings of the Phase II ESA, the study team may identify and implement remedial actions and/or complete a risk assessment.
Given the importance of site characterization, the industry will be watching closely for the updated guidelines as they’re completed by the CCME.
Reliable site characterization starts with thorough, accurate records. As your land records partner, ERIS provides current and historical environmental risk information for real estate. The ERIS system electronically accesses more than 470 federal, provincial, and private sector databases, providing you with a convenient, affordable one-stop resource for all your reporting needs.
Contact Mark Mattei or Matt Thompson at (416) 510-5204 or via email
info@eris.ca Try a sample real estate search on the ERIS home page:
www.eris.ca
Environmental liability: Are your processes putting you at risk?
NOVEMBER 16, 2012—Environmental consultants face plenty of risks in their careers, but they might not be as aware of regulatory and civil liability pitfalls.
Project managers, consultants and employees involved with environmental mishaps can be held personally responsible, so it’s time to think about risk mitigation.
That was the key takeaway from a talk by Stuart Chambers of the law firm McLennan Ross LLP at RemTech 2012 in Banff, Alta. recently.
Chambers pointed out there are two types of liability: regulatory and civil. In using due diligence as a defence, the accused must generally prove that all reasonable steps were taken or that employees reasonably believed in a mistaken set of facts, Chambers explained.
In the past five years, regulators have placed more focus on enforcement, in part due to more sophisticated environmental lobbying, more media coverage and recent high-profile events. The oil sands are in the news on a daily basis, he said.
Penalties have also increased, and the courts are more willing to charge “all who can control” the activity, such as project owners and managers, employees, officers and directors, Chambers added.
He also provided recent examples:
• Western Biodiesel Inc. (August 2011). A release of wastewater containing methanol into the environment resulted in a fire. The manager provided false/misleading information to investigators. The company was fined $160,000 and the manager was sentenced to four months house arrest.
• R&D McCabe Ltd. (May 2009). R&D McCabe was hired by Suncor’s contractor, Compass Group, to operate a wastewater facility. An investigation revealed false information had knowingly been provided to regulators. Mr. McCabe was sentenced to 11 months house arrest; Suncor was fined $175,000 and Compass Group was fined $225,000.
According to Chambers, environmental professionals should have proper management strategies in place. If they don’t, they’re found guilty in court cases 99 percent of the time.
Traditional defence claims such as “we take a common sense approach” or “it’s not my core business” no longer hold sway in the courts, he added.
To respond to growing concern among environmental consultants, ERIS (Environmental Risk Information Services) will be hosting a special breakfast seminar in Toronto during February 2012.
Check back for details soon.
Record of Site Condition: Are you meeting the requirements?
OCTOBER 10, 2012—If you’re a commercial, industrial or community property owner in Ontario, chances are you’ll need a Record of Site Condition (RSC) when considering changing the property to institutional, residential, parkland, agricultural or mixed use.
The requirements for environmental site assessments (ESAs) to support the RSC changed in 2011, and additional information is now required.
Many more aspects of the property assessment must be included with the filing. Some of these changes may affect you as a property owner, developer, lender, municipality, or qualified person (QP).
What is the Record of Site Condition?
According to Ontario Reg. 153/04, it is:
“… a report documenting the results of one or more Environment Site Assessments (ESAs) of a property conducted or supervised by a Qualified Person (QP). The ESA will either confirm that there is no evidence of contaminants at the property that would interfere with any future use of the property or that contaminants at the property do not exceed certain concentration limits (standards).”
Where do you get this information?
Most owners wisely decide to hire a professional (QP) to help them source, assemble and interpret the required information, as it typically involves a great deal of searching through multiple sources. However, if you’re gathering the information on your own, here are a few places to start:
• Land registry offices: Title searches.
• Libraries and insurance sources: Fire insurance maps, aerial photos, historical city directories.
• Provincial government offices: Topographic maps, soil maps and geographic maps.
• Civic offices: Previous Phase 1 reports. An application to the Freedom Of Information Office will usually help access this information.
EcoLog ERIS Ltd. (Environmental Risk Information Service) responded to the 2011 changes by developing a new RSC report.
It provides a complete records review, including more than 80 percent of the documentation required, in one convenient report.
ERIS searches its historic environmental records and includes data from ancillary providers to deliver a single-sourced report within a few days. It serves every province in Canada with up-to-date environmental records.
For questions about RSC reports and requirements contact Mark Mattei at ERIS:
mmatei@eris.ca (416) 510.6859
Download a sample RSC report at: www.eris.ca/report-types/
To learn more about Record of Site Condition (RSC) requirements in Ontario, visit:
www.ene.gov.on.ca/environment/en/subject/brownfields/STDPROD_086257