Canada: Time To Clean Up: Alberta's Revamped Remediation Regulation

Last Updated: March 28 2019
Article by Sean D. Parker and Stuart W. Chambers

As previously reported, in 2018 the Government of Alberta overhauled the Remediation Certificate Regulation, made under the Alberta Environmental Protection and Enhancement Act (“EPEA”). Effective January 1, 2019, the newly titled “Remediation Regulation” came into force.

The new Alberta regime for contaminated sites under the Remediation Regulation has two main parts:

1. Deadlines for completing remediation and submitting reports; and

2. Obtaining remediation certificates.

Deadlines for Remediating Contamination and Submitting Reports

One of the fundamental changes to the regulatory regime for contaminated sites is the imposition of a timeline for completing remediation, or submitting a remedial action plan that includes a deadline for clean-up. The obligations for remediation under the revamped regulation are grounded in the general clean-up provisions of EPEA section 112, which impose the duty to remediate a release that “may cause, is causing or has caused an adverse effect”. The Remediation Regulation at section 2.2 adds detail to that general obligation, by requiring a person responsible for a contaminated site to remediate this site “as soon as possible”. Alternatively, if remediation cannot be completed within two years, the person responsible shall “as soon as possible” submit a remedial action plan to the director of Alberta Environment and Parks (“AEP”) for approval. The remedial action plan shall include specified information such as the remedial methods to be used and the deadline for completion. In essence, this provision of the Remediation Regulation requires immediate clean-up, but if that is not feasible within the two-year period (i.e. two remediation seasons), then the obligation becomes a requirement to submit a remedial action plan for AEP’s approval.

The structure of this new regime is intended to provide the person responsible for a contaminated site the opportunity to clean-up the site within a two-year period and then submit all reports, such as a Phase II Environmental Site Assessment and remediation closure report, to AEP once the clean-up work is complete. That is seen to be a more streamlined process where AEP’s involvement is generally limited until the final review.

Alternatively, if the site “cannot be remediated to the satisfaction of the director within a two-year period” (section 2.2 (2)), then the person responsible must follow a different path that involves more oversight by AEP through the process. The first requirement is that the person responsible must submit a Phase II Environmental Site Assessment “as soon as possible” (section 2.2 (1)). The other requirement is that the person responsible must “immediately” submit a remedial action plan that specifies the completion time for the remediation (section 2.2 (2)). Essentially, if the remediation cannot be completed within two field seasons, AEP becomes involved earlier on in the process and has greater oversight over steps such as delineation work and planning of the remediation.

Although there is logic in this general approach – that AEP has more involvement on more complex sites – there is some uncertainty as to how this regime will actually be implemented. For example, it is not clear how the requirement to submit Phase II Environmental Site Assessment “as soon as possible” under section 2.2 (1) will be applied. Likewise, it is not clear how it will be determined that a site “cannot” be remediated within a two-year period, as provided for under section 2.2(2). Further, the remedial obligations are subject to discretion of the AEP director as to how those obligations will be enforced, for example, what information will be required, and timelines for completing a variety of steps. It is understandable and appropriate for a director to have discretion in contaminated site matters, as each site is different and will present its own unique circumstances. However, these obligations are very new and there are no precedents for their application, resulting in a lack of guidance which in turn generates uncertainty for those who may be responsible for a contaminated property. 

Another significant provision with respect to the remedial obligations is the grandfathering clause found in section 2.2(7). Essentially, the Remediation Regulation will only apply to sites reported to AEP on or after January 1, 2019. Sites that were previously reported, will not be subject to the new regime as it is presumed that they would already be engaged in a previous process for dealing with the site. However, as with other aspects of this new regime, the grandfathering clause is also subject to the discretion of the director. In other words, the new requirements for clean-up within two years, or submission of other reports and plans for completing the remediation work, may nevertheless be required by the director for a previously reported site. Again, while it may be appropriate for the director to impose those requirements for certain sites, it is unclear at this time on what basis the director will or should exercise discretion in this regard. 

Remediation Certificates and Tier 2 Compliance Letter

The second main part of the refurbished Remediation Regulation relates to the revamping of the regime for issuing remediation certificates, and a newly created Tier 2 compliance letter. Under the new regime, there are two types of remediation certificates available: (1) a “site-based” remediation certificate, and (2) a “limited” remediation certificate (section 4). The general concept of a remediation certificate is that it closes regulatory liability for the party that has obtained it. This means a party that obtains a remediation certificate will not be subject to future regulatory requirements from AEP in relation to the substances or areas covered under the remediation certificate. However, additional contamination discovered at a later date that is not covered under the remediation certificate will not enjoy this same protection and could be subject to further regulatory action. 

The site-based remediation certificate provides the highest degree of regulatory protection. This type of certificate applies to the entire area that has been impacted by the activity. Specific requirements for obtaining a remediation certificate are set out in section 4 of the Remediation Regulation. Essentially, a site-based remediation certificate can only be issued where all of the contamination has been identified and cleaned up on the site and on other affected surrounding lands. There is an exception where a site-based remediation certificate could be issued for the specified parcel of land and where contamination remains off-site, provided that the remaining off-site impacts are subject to a risk management plan that has been approved by the director. It is important to recognize that the off-site areas under a risk management plan would not be captured under the remediation certificate, and therefore would not enjoy the regulatory closure that those certificates provide pursuant to section 117 of the Environmental Protection and Enhancement Act

The other type of remediation certificate is called a “limited” remediation certificate. These certificates do not apply to the entire area impacted by the activity, as with a site-based remediation certificate, but rather apply to the limited area that has been remediated to the satisfaction of the AEP director. These limited remediation certificates appear to be more suitable for a discrete type of event such as a known release on a known part of the site. To obtain a limited remediation certificate, the area of impact would need to be assessed and fully remediated to the satisfaction of the director. The certificate would apply only to that limited area, and the contaminants of concern that were identified and remediated. This is a less rigorous process than for the site-based remediation certificate and therefore provides a more restricted degree of regulatory protection. Site-based remediation certificates provide regulatory closure for an entire parcel of land, however, they require full assessment of any impacts on that site and then complete remediation. A limited remediation certificate, on the other hand, would not require a full assessment of the entire site, but rather only of the specific area for which the certificate is sought, and likewise would only provide regulatory closure for that specific area that has been assessed and remediated. 

The third type of document provide for under the new Remediation Regulation is called a Tier 2 compliance letter. This document is intended to provide some level of assurance or comfort to parties that were not able to obtain either a site-based or limited remediation certificate. In order to obtain any form of remediation certificate, some remediation must have actually been completed. If no remediation is conducted, a remediation certificate cannot be issued. The Tier 2 compliance letter was developed to account for situations where the remediation guidelines can be adjusted based on site specific conditions under Alberta’s Tier 2 process, with the effect that human health and the environment are still protected, but no remediation would actually be required. 

While the Tier 2 compliance letter may appear to be a solution where a remediation certificate is not available, its practical value appears to be limited as it does not provide regulatory closure like a remediation certificate would. The Tier 2 compliance letter is solely a creation of the Remediation Regulation, and is not grounded in section 117 of the enabling statute, EPEA, which provides certain statutory guarantees. The effect of this distinction is that an area or site for which a remediation certificate has been issued is not subject to further regulatory action by AEP, for example, requiring further remediation if the guidelines change. Conversely, an area that is the subject of a Tier 2 compliance letter does enjoy the same protections and further regulatory action could be required at a later date, for example, further remediation if the guidelines do change. It is uncertain what the practical benefit of a Tier 2 compliance letter is given the apparently limited degree of protection that it affords.

Conclusions and Further Thoughts

The Remediation Regulation that came into force on January 1, 2019 sets out a revised regulatory regime that will be applied to contaminated sites in Alberta going forward. The new regime imposes additional requirements for assessment and reporting to AEP, as well as new timelines for doing so. However, given the significant discretion afforded to directors at AEP and the lack of precedents for how decisions will be made under this new regime, there is significant uncertainty as to how the Remediation Regulation will be applied, and how the directors’ discretion will be exercised over a variety of matters. Further, it appears that some of these new requirements will involve an enhanced degree of interaction with AEP in terms of reviewing site assessments, remedial action plans, risk assessments, risk management plans and other documents. It is unclear how AEP will handle this potential increased workload so as to ensure the new regime operates in an efficient and effective manner, rather than creating backlogs and other unintended consequences. 

The new site-based remediation certificate provides more comprehensive regulatory closure as compared to the limited remediation certificate. However, the higher degree of protection for the site-based certificate comes with greater assessment and remedial obligations. Depending on the unique circumstances of each site and intended purpose for obtaining a remediation certificate, consideration should be given as to what degree of regulatory closure is reasonably required balanced against the amount of work and cost associated with each type. Further, consideration should be given to the amount of time that may be required for processing of a remediation certificate application. Often, remediation certificates are sought to limit liability and facilitate some type of commercial transaction, such as the sale of land. However, the current timeline for obtaining a remediation certificate could be in excess of three years, which could wipe out any practical benefit depending on the commercial conditions of the transaction. In order to have an effective remediation certificate regime, the process will need to be reasonably responsive and operate on timelines that correspond to commercial realities. 

While the concept of a Tier 2 compliance letter appears to be sound and may be appropriate in certain circumstances, its practical utility is questionable given that the regulator could still come back at a future date and require a further action. To obtain the protections afforded by a remediation certificate, a proponent may consider conducting at least some remediation in order to be eligible for remediation certificate. However, the degree of remediation required in order to qualify for the remediation certificate program is an another currently open question. 

Overall, the Remediation Regulation sets out a new regime for managing contaminated sites in Alberta, building upon the existing remedial obligations embodied in section 112 of the Environmental Protection and Enhancement Act. Given the newness of this regime and the significant discretion afforded to AEP decision-makers, there is uncertainty as to how the regulation will actually be implemented.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Sean D. Parker
Stuart W. Chambers
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions