Industry NewsfeedCourtesy of McCarthy Tetrault. View original article here.
Following stakeholder review and consultation, the Government of Alberta passed the Remediation Certificate Amendment Regulation by Order in Council on June 1, 2018. The Regulation, which will come into force on January 1, 2019, updates the current Remediation Certificate Regulation and re-names it the Remediation Regulation (the Regulation).
Section 117 of the Environmental Protection and Enhancement Act (EPEA) provides the Director or an inspector with the authority to issue a remediation certificate in respect of land where remediation has been carried out in accordance with the terms and conditions of any applicable approvals, an environmental protection order (EPO), EPEA, or any other instructions provided by the Director (or inspector). Remediation certificates are voluntary and provide closure for potential regulatory liability, which is designed to incentivize the remediation of contaminated sites. To be eligible for a remediation certificate, applicants must demonstrate remediation success and complete a Remediation Certificate Application Form. Remediated areas are eligible for certification under one of two programs:
- remediation certificates for general contaminated sites; and
- remediation certificates for upstream oil and gas sites.
Key Changes under the Remediation Regulation
The new Regulation introduces a number of changes to the current remediation regime, including:
- Reporting requirements in respect of “new information” – Under the Regulation, there is a duty to report any new information about the impact of a released substance to a person or land; this information must be reported to an affected person and the Director at the time of discovery. This reporting obligation is in addition to the requirements of EPEA and the Release Reporting Regulation, and it appears to impose a duty to report an impact that arises in connection with a prior release (as opposed to just a release). The duty to report new information falls to the “person who releases or causes or permits the release of a substance” in accordance with s. 110(1) of EPEA. It should be noted that the reporting obligations under EPEA and the Release Reporting Regulation do not currently require a person reporting a release to also report on the impacts of the release.
- Additional details on EPEA remedial measures – Under section 112(1) of EPEA, the person responsible for a substance that may cause, is causing or has caused an adverse effect is released into the environment has a duty to take remedial measures. In particular, the person responsible must (i) 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 (ii) restore the environment to a condition satisfactory to the Director, as soon as the person responsible becomes aware of (or ought to have become aware of) the release. The Regulation introduces specific instructions and a timeline for the remedial measures prescribed by section 112(1) of EPEA. The Regulation requires that when the person responsible becomes aware of (or ought to have become aware of) the release of a substance, they must: (i) submit a Phase 2 environmental site assessment to the Director; or (ii) complete remediation and submit a report to the Director, as soon as possible. In addition, the Regulation imposes a two-year time limit to complete remediation; otherwise a remedial action plan will be required. The Director has the discretion to modify or waive these requirements. There is nothing to suggest that the two-year time limit for completing remediation precludes the Director from requiring remedial action at an earlier date. These provisions do not apply to releases that occurred prior to the coming into force of the Regulation, unless otherwise required by the Director.
- Additional guidelines for remediation – Additional guidelines have now been incorporated into the Regulation. In addition to the Alberta Tier 1 and Tier 2 Soil and Groundwater Remediation Guidelines, the Regulation now includes: the Environmental Site Assessment Standard (March 2016), the Exposure Control Guide (May 2016) and the Risk Management Plan Guide (October 2017).
- Introduction of a site-based remediation certificate – The Regulation introduces a new site-based remediation certificate, which demonstrates that a “site” (defined as land used in connection with an activity referred to in the Schedule of Activities to EPEA and on which a substance is stored, treated, sold or used as part of a commercial or industrial activity) has been remediated. The original area-based remediation certificate has been renamed a “limited remediation certificate” and continues to demonstrate that the “remediated area” (defined as land that is the subject of an application) has been remediated. An application for a site-based remediation certificate requires additional documentation than for a limited remediation certificate, including a legal land description or survey, a current Phase 1 environmental assessment, a detailed Phase 2 environmental assessment, and a detailed remediation report. Subject to certain exceptions, both the site-based and limited remediation certificate provide protection against an EPO with respect to the substance and remediated zone that is the subject of the certificate.
- Introduction of an Alberta Tier 2 compliance letter – The Regulation introduces a Tier 2 compliance letter, which is aimed at providing project closure certainty. The letter is issued by the Director and confirms that the area of land or the site meets the Alberta Tier 2 Soil and Groundwater Remediation Guidelines and does not need to be remediated. Where a site is not eligible for a remediation certificate but there are areas of potential environmental concern, a Tier 2 compliance letter provides notice that further remediation of a site is not required. In order to obtain an Alberta Tier 2 compliance letter, an applicant must submit Phase 1 & 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.
The Regulation also authorizes the Director to establish an electronic system for the submission and processing of remediation certificate applications.
Coming Into Force Date
As noted above, the Regulation will come into force on January 1, 2019. Until then, the current regulatory regime continues to apply. It is anticipated that applications submitted up to January 1, 2019 will be processed in accordance with current remediation program requirements.
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