• A Newly Reinvigorated Alberta Remediation Certificate Regime
  • August 13, 2018 | Author: Brittany Scott
  • Law Firm: McLennan Ross LLP - Yellowknife Office
  • On June 1, 2018, the Government of Alberta passed the Remediation Certificate Amendment Regulation by Order in Council. This regulation amends the current Remediation Certificate Regulation in a number of key ways, and re-names it the “Remediation Regulation”.

    The changes introduced by the Remediation Regulation will require all contamination caused by spills that are reported to the regulators after January 1, 2019 to be assessed as soon as possible through a Phase 2 environmental site assessment that meets Alberta Environment and Parks (“AEP”) standards, and remediated within two years or subject to an approved remedial action plan (“RAP”) with an approved final clean-up date. This is a significant departure from the current Remediation Certificate Regulation.

    Existing Remediation Scheme

    Remediation obligations arise out of section 112(1) of Environmental Protection and Enhancement Act (“EPEA”), which provides that when a substance that “may cause, is causing or has caused an adverse effect” is released into the environment, the person responsible for the release has a duty to take remedial measures and confine the effects of the substance. As soon as the person responsible becomes aware of the release they must:

    • take all reasonable measures to repair, remedy and confine the effects of the substance, and remediate, manage, remove or otherwise dispose of the substance in such a manner as to prevent an adverse effect or further adverse effect; and
    • restore the environment to a condition satisfactory to the Director.

    Tangential to the obligation to take remedial and restoration measures, a person responsible may obtain a remediation certificate in respect of land where remediation of the land has been carried out in accordance with the terms of any applicable approvals or environmental protection order (“EPO”) or any other instructions provided by an inspector or the Director. Remediation certificates are voluntary but provide closure for potential regulatory liability. Currently the Remediation Certificate Regulation focuses on the application, issuance, and effect of a remediation certificate.

    Alberta’s New “Remediation Regulation”

    The Remediation Regulation introduces a number of changes to the remediation regime:

    • New mandatory timelines imposed for remedial measures;
    • Reporting requirements for “impacts” not just releases;
    • Creation of a site-based remediation certificate;
    • Creation of an Alberta Tier 2 compliance letter; and
    • Incorporation of several guidelines into law.

    The Remediation Regulation will be administered by the Alberta Energy Regulator (“AER”) for contamination at upstream oil and gas sites (such as wells, pipelines, and facilities) and by AEP for all other sites.

    New Timelines Imposed for Remedial Measures under Section 112 of EPEA

    The Remediation Regulation now imposes a mandatory timeline for remedial measures imposed by section 112(1) of EPEA. The Remediation Regulation requires a person responsible for a spill that is reported after January 1, 2019 to remediate as soon as possible, by either:

    • Remediating the spill to meet the criteria set out in the Tier 1 and 2 Soil and Groundwater Remediation Guidelines and submit a report to the regulators about the remediation; or
    • Undertaking a Phase 2 environment site assessment of the site that meets the requirements of AEP's Environmental Site Assessment Standard. If the site cannot be remediated to the satisfaction of the AER or AEP, as applicable, within two years, then the person responsible must submit a RAP that complies with the Tier 1 and Tier 2 Soil and Groundwater Remediation Guidelines, Environmental Site Assessment Standard, Exposure Control Guide and Risk Management Plan Guide and includes a period of time for completion of the remediation. The AER or AEP must approve this final remediation date. Further, the person responsible must take the remedial measures set out in this RAP by such time or be liable for an offence under EPEA.

    The two-year clock for remediation starts from the time a person responsible becomes aware of the release. As such, it is now extremely important to start the process of remediation as soon as practicable. However, if the site cannot be remediated to the satisfaction of the applicable regulatory authority within the two-year period, then a RAP must be submitted immediately in accordance with the Guidelines . It is currently unclear what a RAP will look like and what obligations will exist going forward other than the regulatory authority must approve the timeline for completion of remediation.

    New Duty to Report Impacts of a Released Substance

    Under EPEA, a person responsible for the release of a substance into the environment, which substance causes or has the potential to cause an adverse effect, is under a legal duty to report it to the regulators as soon as they know about the release or ought to have known about it. This duty has now been expanded by the Remediation Regulation. The Remediation Regulation now requires that where there is new information about the impact of a released substance to a person or land, there is a duty to report the information to an affected person and the Director at the time of discovery of the impact. This new obligation to report is in addition to the current requirements of EPEA and the Release Reporting Regulation. This appears to broaden the scope of the duty to report to include impacts - not just releases - that arise in connection with a prior release.

    Creation of a Site-Based Remediation

    The regulators will now offer two types of remediation certificates – a site-based remediation certificate and a limited remediation certificate:

    1. A site-based remediation certificate shows that a site has been remediated; and
    2. The current area-based remediation certificate, which is now renamed a “limited remediation certificate”, will continue to show that the remediated area has been remediated.

    The introduction of a site-based remediation certificate seems to be aimed at closing off regulatory liability for the whole site, rather than a portion of a site or property that is remediated. Given the scope of a site-based remediation certificate, it is unsurprising that an application for a site-based remediation certificate is more fulsome and requires more supporting documentation that a limited remediation certificate. In a site-based remediation certificate application, a person must demonstrate that the entire reported area has been remediated and that the area outside the remediated area does not require remediation. The documentation to demonstrate this includes a legal land description or survey, a current Phase 1 and detailed Phase 2 environmental assessment, and a detailed remediation report.

    Remediation Certificates no Longer Fully Reduce Future Potential Regulatory Liability

    Currently, under EPEA, where a remediation certificate is issued, no EPO requiring further work in respect of the same release of the same substance may be issued under the Act. However, this has been amended under the Remediation Regulation. Under the Remediation Regulation, even if a limited remediation certificate or a site-based remediation certificate is granted, the Remediation Regulation still permits the issuance of an EPO in limited circumstances where one or more of the substances that are the subject of the limited remediation certificate are present in the remediated zone and exceed the remediation objectives that were applicable at the time the certificate was issued. With respect to a site-based remediation certificate, the Remediation Regulation still permits the issuance of an EPO if one or more substances that are the subject of the site-based remediation certificate are present anywhere in or under the site, or any area off the site, or any area on or off the site that was not assessed in the original Phase 2 environmental site assessment and that exceed the remediation objectives that were applicable at the time the certificate was issued.

    Creation of Alberta Tier 2 Compliance Letter

    The Remediation Regulation also introduces an “Alberta Tier 2 compliance letter". This appears to be intended to provide evidence that an area of land or site meets the Alberta Tier 2 Soil and Groundwater Remediation Guidelines and does not need to be remediated. In order to obtain an Alberta Tier 2 compliance letter the applicant must submit Phase 1 and 2 environmental site assessments, delineation of the area of land or the site, and a risk assessment in accordance with the Alberta Tier 2 Soil and Groundwater Remediation Guidelines. This Alberta Tier 2 compliance letter may be required for site-based remediation certificate to be granted, but this is unclear at the moment.

    Incorporation of Guidelines

    The Remediation Regulation codifies into law the requirements of the following guidelines:

    • Tier 1 and 2 Soil and Groundwater Remediation Guidelines for obtaining a remediation certificate under EPEA and for assessing contaminated sites ;
    • Environmental Site Assessment Standard (published February 2, 2016);
    • Exposure Control Guide (published May 3, 2016); and
    • Risk Management Plan Guide (published October 31, 2017).

    Transition

    The Remediation Regulation comes into effect on January 1, 2019 to give the Alberta Government time to develop a Remedial Action Plan Guide and ensure that business processes are in place to support the implementation. The Alberta Government will continue to accept area-based remediation certificate applications under the existing Remediation Certificate Regulation until January 1, 2019.