24 Jul Regulating Pollution and Contaminated Sites in Alberta: Case Study of the Verte Homesteader Community
Cover Photo – “Fencing around the old Domtar site” Photograph. 2021. CTV News Edmonton. https://edmonton.ctvnews.ca/precautionary-park-fencing-comes-down-at-former-domtar-site-1.5651392
Imagine that you invested your life savings in buying a home. One day, you receive a letter warning that your home is located next to contaminated land. The alleged contaminants are mainly dioxins and furans, which can pose threats to human health in large amounts or over long periods of time. Fences suddenly go up around the park that your kids play at every day after school. The developers, builders, municipal and provincial governments are unable to give answers until they complete their investigations. You hear that various parties are embroiled in litigation. Fear and uncertainty spread throughout the neighbourhood as residents worry about the potential impact of the pollutants and contaminated site to their health and property values.
Sounds like a nightmare right? Unfortunately, this is what residents of the Verte Homesteader community, a newer infill neighbourhood located in northeast Edmonton, faced in 2018/19 when concerns arose that the lands in and around the neighbourhood were contaminated. Read on to learn more about the Verte Homesteader community and how contaminated sites are regulated in Alberta in general.
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The Environmental Law Centre (ELC) recently released a new publication entitled The Regulation of Pollution and Contaminated Sites in Alberta. This report reviews the laws governing pollution and contaminated sites in Alberta, identifies issues and challenges with these laws, and makes recommendations for reform. One of the challenges identified in the report is the lack of clear regulation for the use of risk management, or more specifically, exposure control, at contaminated sites. By way of background, exposure control is a type of risk management that uses physical or chemical barriers to prevent exposure to receptors and/or administrative controls.[1] It is sometimes done as an interim step until remediation guidelines can be met and other times when remediation is not possible and/or financially feasible. In those instances, long-term monitoring is required and land use may be limited.
The Verte Homesteader community is one such risk-managed site. Previously, the site was home to a Domtar Inc. (Domtar) wood treatment facility that operated from approximately 1924 until 1987, when the plant was closed and the land cleaned up to the standards of the day.[2] The property remained vacant for more than two decades as residential neighbourhoods were built up around it. In 2010, Domtar sold the property to Cherokee Canada Inc. (Cherokee), which is in the business of brownfield redevelopment. Not long afterwards, Cherokee began cleaning up the site to sell it for residential development.[3]
Cherokee obtained approval from Alberta Environment and Protected Areas (AEPA) to develop “Parcel C” of the land into a residential neighbourhood (now known as the Verte Homesteader community) and build an engineered berm on the site using contaminated material. Shortly afterwards, Cherokee began working on Parcel Y, east of Parcel C. The work on Parcel Y also included the construction of an engineered berm using contaminated material.[4]
In or around 2014, there was a significant change of staff within AEPA and many of the individuals who had previously been working with Cherokee on the site left.[5] Shortly afterwards in 2015, an approval engineer from AEPA contacted the Director and advised that Cherokee could be in breach of its regulatory approval by constructing a berm on Parcel Y without the proper authorization.[6]The Director commenced an investigation (including significant site sampling) and between December 2016 and July 2018 issued five enforcement orders plus two significant amendments directing Cherokee and Domtar to, among other things, develop and implement plans for the immediate removal of all contaminated material from the property, including the Parcel Y berm.[7]
The Director’s investigation and subsequent enforcement orders kicked off years of contentious litigation between all parties involved in the site as well as significant fear, uncertainty and bad press for those who lived in the area. And yet, it did not have to be this way. The confusion and discord that arose from the redevelopment of the Verte homesteader community can be, at least in part, linked to the overall lack of regulation for risk management of polluted and contaminated sites in Alberta. In this instance, staff turnover led to a new set of people reaching different conclusions based on the same information as their predecessors. This suggests insufficient clarity and guidance around when and how risk management tools such as exposure control can remediate contaminated sites.
Currently, contaminated sites in Alberta are primarily governed by the Environmental Protection and Assessment Act (EPEA)[8] and the associated Remediation Regulation [9]. However, the legislation’s overall focus is generally on remediation. It does not address or specifically regulate some issues that can arise with risk management, such as managing contamination on-site or in the long term. These details are only discussed in policy documents and guidelines or sometimes not at all.
The Verte Homesteader Community Case Study
As previously discussed, the Director at AEPA issued five environmental protection orders (EPOs) plus two significant amendments to Cherokee and Domtar with respect to the project. The orders required them to develop and implement plans to immediately remove all contaminated material from the property, including the Parcel Y berm. Cherokee and Domtar appealed the orders, with the main issue being that the actions ordered by the Director were inconsistent with Cherokee’s brownfield redevelopment plan. As part of its site redevelopment, Cherokee had planned to construct an engineered berm using the contaminated material from the site. A brief review of the appeal and subsequent ministerial order follows below.
David Bajer/CBC – An aerial view of the site of the former Domtar plant facility” 2023 CBC
https://www.cbc.ca/news/canada/edmonton/domtar-plant-remediation-edmonton-contamination-1.7038845
The Appeal
The appeal was heard by the Alberta Environmental Appeal Board (AEAB or Board). The issue was whether the Parcel Y berm had been constructed without authorization. The Director also argued that both the Parcel Y and Parcel C berms were constructed with hazardous waste, and therefore their construction constituted the “unauthorized disposal of hazardous waste.”[10]
The Board ended up siding with the Cherokee. For one, the Board found that Cherokee held a reasonable belief that it was authorized to build the berm. The approval was not explicit that written authorization was required and Cherokee had met and communicated with AEPA officials regarding its plans to build the berm[11]. Moreover, the AEAB did not accept the Director’s interpretations with respect to waste or hazardous waste. Given that Cherokee intended to use the contaminated material to construct the berms, as opposed to dispose of it, it was not “waste” within the meaning of the regulation.[12] The removal and transportation of large quantities of contaminated material would also result in unnecessary risks and there was a province-wide shortage of hazardous waste landfill space.[13]
The Board recommended reversing the EPOs and returning the project to an approved Director with AEPA. However, the Board did recommend issuing two new EPOs: one to Cherokee for further delineation of dioxins and furans in the Verte Homesteader community and one to Domtar for further delineation of naphthalene, dioxins and furans in the adjacent Overlander community.
The Ministerial Order
Following the Board’s decision in Cherokee, the Minister of Environment and Parks issued a Ministerial Order that mostly accepted the AEAB’s recommendations and reversed the EPOs and amendments.[14] The Order directed that the project be managed as a brownfield redevelopment and set out a lengthy list of requirements (with timelines) for items to implement exposure control on site. Finally, the order also included the two new EPOs recommended by the Board for additional work with respect to the dioxins and furans found in and around parcel C.
The Outcome
AEPA has since approved the remediation, risk management and long-term monitoring plans for Cherokee. Remediation work started in the fall of 2022 on Parcel Y and was completed in November 2023. Meanwhile, the department approved the risk management and long-term monitoring plans for Domtar in the Fall of 2022. Long-term monitoring was set to begin on the lands along the railway in 2023.[15]
As for the Verte Homesteader community itself, the playground portion was reopened in 2020 and the community park in 2021.[16] Nevertheless, some residents continue to lack confidence in the safety of their environs and the stigma associated with the site appears to remain, at least for now.[17]
A map shows the former site of the Domtar creosote plant. (CBC) 2023
https://www.cbc.ca/news/canada/edmonton/domtar-plant-remediation-edmonton-contamination-1.7038845
Discussion
On its face, the dispute in Cherokee seems to be about whether Cherokee was authorized to move and bury the contaminated soil on the property. Yet, closer inspection also reveals tension between the approval and enforcement arms of AEPA and grey areas within the regulatory regime when managing contamination on site. On the one hand, managing contamination in situ and more broadly, risk management through exposure control has become an accepted and even pragmatic policy choice by AEPA for select contaminated sites. On the other hand, these policies exist somewhat in a regulatory vacuum and do not necessarily align with the spirit of the legislation.
Ultimately, the Cherokee case points out a gap in the legislation. As currently written, the Act mostly assumes that contaminated material will be remediated, disposed of or removed from the site. EPEA imposes a duty to take remedial measures where a substance may cause, is causing or has caused an adverse effect. Section 112(1) of the Act requires the person responsible for the substance to “take all reasonable measures” to repair, remedy and confine the effects of the substance and to remediate, manage, remove or otherwise dispose of the substance and “restore the environment.” Entire sections of the Act and its regulations are devoted to the who, what, where and when of this remediation and restoration.
In practice, however, AEPA recognizes that not every site is eligible for remediation and permits some sites to be risk-managed. The rules and guidelines that govern risk management are found mainly in policy documents such as the Alberta Risk Management Plan Guide and the Alberta Exposure Control Guide. While the Remediation Regulation has adopted these documents, the Act and regulations themselves are mostly silent with respect to how risk management must be carried out and how it fits into the regulatory framework.
Moreover, it can be confusing when contaminated material remains on site, such as in the Cherokee case. Is contaminated soil still “waste” or “hazardous waste” if it is intended to be stored on-site rather than disposed of? What rules and regulations apply to material that has the properties of “waste” or “hazardous waste” but is used for something such as building a berm on private property? Again, EPEA, as written does not appear to contemplate that contaminated material would stay on site and not be remediated.
Altogether, the Cherokee case and the Verte Homesteader community highlight a lack of regulation for risk management of contaminated sites in Alberta. Not only can this confuse parties seeking clarity for current remediation and brownfield redevelopment projects, but it also acts as a deterrent for parties considering future brownfield redevelopment in the province.
How Other Jurisdictions Regulate Risk Management/Exposure Control
This begs the question—is there a better way to regulate contaminated sites? As part of its investigation and report, the ELC reviewed other Canadian jurisdictions to learn how (or if) they were successfully managing public and environmental risks absent timely remediation. The ELC found three other jurisdictions, British Columbia, Ontario and Saskatchewan, that employed innovative and/or improved regulatory tools.
For instance, British Columbia and Ontario have legislation that directly addresses risk-based remediation, with the Contaminated Sites Regulation and Schedule C of O. Reg 153/04 respectively. In BC, the Contaminated Sites Regulation defines the terms “risk assessment” and “risk management” and sets out remediation standards for risk-based remediation generally and for environmental management areas specifically.[18]The Regulation also includes a section on contaminated soil relocation.[19]
Meanwhile, in Ontario, Schedule C to O. Reg 153/04 sets out the regulatory requirements for risk management and risk management plans. In cases where it may be difficult for a property to meet the site condition standards, the property owner may instead use a risk assessment to develop property-specific standards.[20] Once a risk assessment has been accepted, and if there are ongoing risks associated with a property, the Director may also issue a certificate of property use.[21]The certificate of property use is issued to the owner of the property. It can require them to take any action that, in the Director’s opinion, is necessary to prevent, eliminate or ameliorate any adverse effect identified in the risk assessment and/or prevent specific uses or construction of buildings on the property.[22]
In addition, BC, Ontario and Saskatchewan all permit imposing some type of financial security for deferred remediation sites. In BC, the Director may require financial security in case of “significant risks” that the site will not be addressed, managed or monitored and where a covenant is insufficient to ensure remediation is carried out.[23]In Ontario, financial assurance may be required in the certificate of property use.[24] Finally, Saskatchewan‘s Environmental Management and Protection Act, 2010 requires mandatory financial assurance for any corrective action plans proposing “risk management with future reclamation” to ensure the site is utlimately reclaimed.[25] The financial assurance must be in the amount and form that is acceptable to the Minister.
Conclusions and Recommendations
Overall, Alberta lacks regulation for remediation that departs from the standard (i.e., immediate removal of contaminated soil). For one, there appears to be a gap in prescriptive regulations. The practical aspects of remediation have departed from remediating releases “as soon as” the persons responsible become aware of leaving polluted sites idle for years at a time.
Another evident gap in Alberta’s regulatory approach revolves around longer-term monitoring and maintenance of risk management systems. Under the current regulatory system, long-term reliance on mitigation and risk management mechanisms may be part of land use allowances. Yet, there are no specific regulatory rules. Furthermore, there are no financial assurances despite the risk that these systems may fail and/or those responsible may wind up or become insolvent.
In jurisdictions such as British Columbia, Ontario and Saskatchewan, some of these issues are already addressed in the legislation.
Accordingly, the ELC recommends the implementation of a comprehensive regulatory regime for risk management through exposure control. This regulatory regime should include:
- Definitions for “remediation” and “manage” in s. 112 of EPEA;
- Guidelines for when and how remediation may be deferred and/or risk managed (i.e. what factors must be considered, the process for undergoing a risk assessment and completing a risk management plan, etc.)
- Guidelines for when a change of use (i.e. from industrial or commercial to residential use) may be permitted without full remediation;
- Registration on the title of any approved risk management plans; and
- Ongoing monitoring and financial securities for sites that are not immediately remediated.
This risk management regime should be integrated into EPEA and either the existing Remediation Regulation or as a standalone regulation. Either way, efforts should be made to ensure that it dovetails with existing legislation.
The ELC acknowledges that implementing some of the above-noted recommendations is a challenge. However, the goal is to address and ultimately avoid the issues that caused the confusion, conflict and delay associated with Cherokee and the Verte Homesteader Community. To read more about the Cherokee case and other challenges with regulating contaminated sites, see the full report here. What sort of changes to this regime would you like to see?
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Footnotes
[1]Government of Alberta, Alberta Exposure Control Guide, (Edmonton: Land Policy Branch, 2016) at 6, online(pdf): https://open.alberta.ca/dataset/6ce7e015-2cee-4bc4-b863-e84feddccfaa/resource/d9d6b320-3e26-46ff-8c13-fe86382e372e/download/exposurecontrolguide-may03-2016.pdf[Alberta Exposure Control Guide].
[2] Cherokee Canada Inc. et al. v. Director, Regional Compliance, Red Deer-North Saskatchewan Region, Operations Division, Alberta Environment and Parks (February 26, 2019), Appeal Nos. 16-055-056, 17-073-084, and 18-005-010-R (AEAB) at paras 5-6 [Cherokee].
[3] Ibid at para 7.
[4] Ibid at paras 9-10.
[5]Josee St-Onge, “Domtar creosote plant dispute goes to Environmental Appeals Board” CBC News (27 August 2018), online: https://www.cbc.ca/news/canada/edmonton/environmental-appeal-domtar-cherokee-contaminants-northeast-site-1.4800995
[6] Cherokee, supra note 2, at para 11.
[7] Cherokee, Ibid at para 12.
[8]RSA 2000, c E-12 [EPEA].
[9]Alta Reg. 154/2009.
[10] Cherokee, supra note 2 at paras 31-39.
[11] Cherokee, supra note 2 at para 31.
[12] Ibid at para 41.
[13] Ibid at para 43.
[14] Order Respecting Environmental Appeals Board Appeal Nos. 16-055-056, 17-073-084 and 18-005-010, Ministerial Order 18/2019 (March 12, 2019) at 63-75 online (pdf): www.eab.gov.ab.ca/dec/16-055-etc.-Cherokee-R.pdf.
[15]Government of Alberta, “Contaminant Management – Domtar” (November 15, 2023) online: https://www.alberta.ca/contaminant-management-domtar#jumplinks-0.
[16]“Precautionary park fencing comes down at former Domtar site” CTV News Edmonton (3 November 2021), online: https://edmonton.ctvnews.ca/precautionary-park-fencing-comes-down-at-former-domtar-site-1.5651392
[17]Keith Gerein, “Cleanup begins on Edmonton’s Domtar lands, but stigma will be harder to scrub” Edmonton Journal (16 September 2022), online: https://edmontonjournal.com/opinion/columnists/keith-gerein-cleanup-begins-on-edmontons-domtar-lands-but-stigma-will-be-harder-to-scrub;Wallis Snowdon, “They live near a former wood treatment plant. Now they anxiously await results of a cancer investigation” CBC News (29 November 2023), online: https://www.cbc.ca/news/canada/edmonton/domtar-plant-remediation-edmonton-contamination-1.7038845.
[18]BC Reg 375/96 [Contaminated Sites Reg], s. 1, 18-18.1.
[19] Ibid, ss. 40-46.2.
[20]Government of Ontario, “Guide: site assessment, cleanup of brownfields, filing of records of site condition”, online: www.ontario.ca/page/guide-site-assessment-cleanup-brownfields-filing-records-site-condition#section-7. The site condition standards are set out in “Soil, ground water and sediment standards for use under Part XV.1 of the Environmental Protection Act”, online: www.ontario.ca/page/soil-ground-water-and-sediment-standards-use-under-part-xv1-environmental-protection-act.
[21] Environmental Protection Act, RSO 1990, c E.19 at s. 168.6 [EPA].
[22] Ibid, s. 168.6(1).
[23] Contaminated Sites Reg, supra note 20, ss. 48(4)-(5).
[24]EPA, supra note 22, ss. 132(11) & 168.7 (5).
[25]SS 2010, c E-10.22, s. 12(1)(c) and (e) [EMPA, 2010].
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