Copyright 2009, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Environmental Law, July 2009
The Alberta Environmental Protection and Enhancement Act (EPEA) is the main environmental statute in Alberta. It was proclaimed during the 1990s and contains provisions relating to the issuance of Remediation Certificates. However, as of June 2009, no Remediation Certificates had ever been issued, nor had Alberta Environment (AENV) published any documentation or guidelines regarding the process that must be followed in order to apply for a Remediation Certificate. That situation has finally changed. AENV has recently published criteria and guidelines regarding the process to follow and forms to complete in order to apply for a Remediation Certificate.
REMEDIATION CERTIFICATES VERSUS RECLAMATION CERTIFICATES
Persons in the oil and gas industry are generally familiar with Reclamation Certificates. Reclamation Certificates are issued by the Alberta government after lands previously used in upstream oil and gas development have been assessed and remediated in a manner satisfactory to the government. If the lands can be shown to support a range of activities similar to their use prior to the upstream oil and gas development, that is, if it can be shown that the lands can be reclaimed, the owner may apply for a Reclamation Certificate. Reclamation Certificates are issued by the government and provide comfort and certain limited protection to an owner against the issuance of subsequent Environmental Protection Orders.
Remediation Certificates are different. In theory, they can relate to any lands where the release of a substance has occurred and the lands have been remediated. It is theoretically possible for an upstream oil and gas site to have both a Remediation Certificate and a Reclamation Certificate issued for it. Remediation Certificates are often associated with the concept of Brownfield remediation. (A Brownfield is commonly thought of as a site that previously housed an activity that resulted in contamination. The contaminated site may currently be abandoned and/or derelict and no longer used for any productive purpose. Although certain developers and owners may want to develop the site, they delay in such development due to concerns over their ultimate liability for the contamination. Remediation Certificates are considered a means of providing certain protection to these developers and owners.)
Similar types of certificates are commonly issued in numerous jurisdictions across Canada (although it is uncommon for the provincial government to issue a certificate as opposed to a site professional). In Alberta, once a Remediation Certificate has been issued, AENV is absolutely prohibited from issuing a subsequent Environmental Protection Order requiring remediation of the same release covered by the certificate. The practical effect of such a prohibition is that once a Remediation Certificate is issued and remediation standards subsequently change, further remediation of the site will not be required. However, since Remediation Certificates are narrowly focused to a single, specific release, future liability may remain regarding other releases on the same property. Where there are multiple releases that have been adequately remediated, landowners would be wise to apply for separate Remediation Certificates.
ELIGIBLE LANDS AND THE STANDARDS OF REMEDIATION
As stated earlier, Remediation Certificates theoretically apply to all lands. In what appears to be a cautious approach by AENV, the recent documentation published by AENV only relates to petroleum storage tank sites. AENV has stated its intention to broaden the scope of eligible lands in the future.
To be eligible for a Remediation Certificate, there must have been a release of a contaminant and the lands must have been remediated within the Alberta Tier 1 or Tier 2 Soil and Ground Water Remediation Guidelines (Guidelines). Where a release does not result in contamination levels above the Guidelines, such lands are ineligible to receive a Remediation Certificate.
The specific remediation requirements vary depending on the nature of the release. If a release is fully contained onsite, a Remediation Certificate may be issued for all or a portion of the site once remediation to the Guidelines is undertaken. This includes contamination that has migrated under buildings and other site infrastructure. If a release extends offsite, consultations with all impacted third parties must occur. If a third party consents to the remediation of its property, a Remediation Certificate may be issued for both the landowner's and the third-party's land once remediation to the Guidelines is completed. Where an affected third party does not agree to the remediation of its land, or requests a risk management plan prior to the commencement of remediation efforts, the releaser must remediate any onsite portion to the Guidelines and any offsite portion of the release must be subject to an ongoing risk management plan. Only the portions of the lands remediated to the Guidelines will be the subject of the Remediation Certificate and potential future liability may remain with respect to the offsite portions.
THE APPLICATION PROCESS
Participation in the Remediation Certificate program is voluntary and is assessed a non-refundable application fee of C$1,000. Applications are sent to AENV and involve the completion of a 12-page application form available on the AENV website. The form references the historic use of the property as well as the remediation efforts that have been undertaken. It must be accompanied by copies of all environmental reports for the property and requires the signature of both the applicant and the site consultant. AENV may refuse to issue a Remediation Certificate for a site if the information provided by the applicant is insufficient or the remediation does not meet the Guidelines. AENV has also indicated that it expects to audit approximately 10% of the certified areas. Where a certified area fails an audit, AENV may cancel a previously issued Remediation Certificate.
The Remediation Certificate process has been a long time coming to Alberta. By instituting increased protections from changing regulatory requirements, the process creates a real incentive to persons involved in the remediation of certain contaminated lands. The issuance of a Remediation Certificate should aid current landowners in both the re-development and future disposition of remediated lands. Although presently restricted in scope to petroleum storage tank sites, it is anticipated that the scope will eventually expand to a much broader range of lands within the province.
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.