January 18, 2012

New environmental regulations can create challenges and opportunities

KELLY LAPOINTE

staff writer

New and changing environmental regulations can create both challenges and opportunities for companies, say experts.

Juli Abouchar, Partner, Certified Environmental Law Specialist, Willms & Shier Environmental Lawyers LLP, and Dan Bunner, P. Geo, Principal of Environ Canada, spoke of environmental regulatory changes during the 21st annual Construction Superconference.

Bunner said things constructors took for granted in the past, like dewatering projects, have changed and can lead to charges.

On July 1, 2011, Ontario Regulation 153/04 — Records of Site Condition as amended by Ontario Regulation 511/09 was established and “it probably has the most profound effect to the redevelopment industry in the province in decades,” said Bunner.

It established new soil and sediment guidelines for redevelopment properties.

“The Ministry will argue that they’ve streamlined the process and made it easier for you to follow. Yes they have, but it has become more difficult,” he explained.

“It’s used when you need building permits when you have a land use change, but it’s also used as a tool between parties as a record of site condition document to demonstrate that things are ok with respect to the site.”

Ministry of Environment standards have become stricter, said Bunner. He said a lot of the time, a site can’t get to those standards and it’s generally site specific.

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The province established baseline standards based on risk in 1995 called the Ontario Typical Ranges. But he pointed out that in a place like Sudbury, Ont. the ground is full of copper and nickel.

“On a site specific basis, even if it’s high because of Mother Nature, you’re not going to meet those standards,” he explained, adding that these situations will cost more and take more time.

If the project can’t meet the standards and it’s not stopped, Bunner said potential strategies are: consider a risk assessment approach; take advantage of modified generic risk assessment and its eight-week review period; and consider incorporating use of the MGRA approved model into full Risk Assessments.

A new environmental approvals regime came into effect on Oct. 31, 2011 with Environmental Compliance Approval (ECA) replacing Certificate of Approval; and the Environmental Activity and Sector Registry.

ECA is moving towards a multi-media, multi-site approval. There are additional requirements that were not part of the Certificate of Approval process including possible Aboriginal Consultation, based on the duty to consult.

If a project is in an urban center and being built in an already built-up area, there’s no potential for impact. But in suburban or rural areas, there’s a great potential to find archeology.

It’s important to include everybody at the beginning of a project to try and manage and mitigate the risks, said Aboucher.

She presented the North End Sewer Project on the Saugeen River as a case study. The town was expanding the sewer system and had to go underneath the Saugeen River to provide sewers to the north end of town.

The Saugeen Ojibwa nation identified potential impacts because of the high archeological potential, but also because of their fisheries, use of the river for fishing and a land claim in the area.

There was such a high potential for archeology that they created test holes.

“The amount of artifacts was significant. Almost every time they went into the ground, they found lots,” said Aboucher.

“Because construction had not yet reached the site, they were able to keep construction elsewhere on the project. They began to process the artifacts together and to investigate the site.”

Federal approvals pertaining to projects with less environmental impact have become more streamlined. A dimension of Aboriginal consultation has been added to major infrastructure projects and Greenfield development.

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