The End of Landfills in Ontario? Proposed amendments to the Environmental Assessment Act and the Impact on Waste Management

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Written by Harry Dahme and Jessica Boily, Gowlings WLG

On July 8, 2020, the Ontario government introduced Bill 197 in the Legislative Assembly. Entitled the COVID-19 Economic Recovery Act, the proposed changes within the Bill amend twenty different Acts, including the Environmental Assessment Act.

While some of the amendments proposed in Bill 197 seek to address challenges encountered during COVID-19 (such as the changes to the Provincial Offences Act, covered in our COVID-19 Update), the Bill primarily includes reforms that were on the government’s agenda prior to the COVID-19 pandemic. These reforms include some of the most significant reforms to Ontario’s environmental assessment regime in many years. The Gowling WLG Environmental Law Group will be publishing a series of articles on these proposed reforms, which are expected to be fast-tracked through the Legislature this week.

From the point of view of waste management in Ontario, one of the most significant changes to be made by the Bill is the addition of a new section to the Environmental Assessment Act that would give municipalities the right to veto new landfills proposed to be located within their own borders or in adjacent municipalities where the proposed new landfill is within 3.5 kilometers of the municipal border. This amendment to the EAA would provide municipalities with the unprecedented ability to stop new landfills for any reason, even where the environmental assessment for that landfill would otherwise be satisfactory to the provincial government.

Demand the right coalition emerges

In 2018, Ingersoll Mayor, Ted Comiskey, started the “Demand the Right” Coalition of Ontario Municipalities, seeking support from other municipalities for legislation that would allow municipalities to say no to projects like windfarms and landfills.

On March 1, 2018, Ernie Hardeman, MPP for Oxford, the riding that includes Ingersoll, introduced a private members bill dealing with the issue. Bill 201Respecting Municipal Authority over Landfilling Sites Act, 2018, would have amended the EAA to prevent the Minister of the Environment, Conservation and Parks from giving approval to an undertaking unless the municipal council had passed a resolution supporting the establishment of the landfilling site. The Bill did not receive Second Reading in the Legislature and died on the Order Paper when the Legislature was dissolved for the last provincial election.

During that election in 2018, Doug Ford stated that he respected “the right for local municipalities to make the decisions best for their communities.”

Following the election in 2018, the Ministry of the Environment, Conservation and Parks (“MECP”) released the Made-in-Ontario Environment Plan, which stated it intended to provide “municipalities and communities they represent with a say in landfill siting approvals “. No firm commitment to a veto was made at that time and there were no consultations on the proposed amendments to the EAA affecting landfills prior to the introduction of Bill 197.

The state of landfill capacity in Ontario

Many Ontarians are not aware of the waste disposal crisis in which Ontario finds itself. The Ontario Waste Management Association reports that unless new landfills are built, Ontario’s landfill capacity will be exhausted by 2032. More than 80% of this capacity is located within a small number of sites (15 public and private landfills). These predictions assume that Ontario will continue to export approximately 30% of its waste to the United States, primarily to landfill sites in Michigan and New York. Should those exports stop, Ontario’s landfill capacity would be exhausted by 2028: only eight years from now. This is significant since it takes years, and sometimes more than a decade, to obtain approval for a new landfilling site.

Even before the introduction of Bill 197, the length and uncertainty of the environmental assessment process for new landfills and expansions to existing landfills meant that this crisis was not improving. While increased waste diversion is a laudable goal, even with significantly improved waste diversion rates, existing landfill capacity will be put under significant pressure in the next ten years.

Bill 197

Given the near future waste disposal crisis in the province, there is a demonstrated need for new landfills to be built and existing landfills to be expanded. While Bill 197 aims to streamline existing environmental assessment processes for some projects, it introduces a municipal veto over new landfills that is expected to almost entirely halt the planning for and building of new landfills in Ontario.

Section 10 of Schedule 6 to Bill 197 proposes to amend the EAA by adding a new section 6.01, which would provide that proponents who wish to establish a landfilling site that is subject to Part II of the EAA obtain “municipal support” for the undertaking. Municipal support must be obtained, not only from the local municipality in which the landfilling site is situated, but from any other municipality located within a 3.5 km distance from the property boundary of the proposed landfilling site. This support, as set out in s. 6.01(5), is demonstrated by providing a copy of a municipal council resolution from each of the municipalities, indicating that the municipality supports the undertaking.

This requirement applies to not only new future landfill proposals but also to landfills currently undergoing the environmental assessment process, even though EAA approval had been previously obtained for the Terms of Reference for that environmental assessment process and even though the environmental assessment process was proceeding in compliance with the approved Terms of Reference.

Proposed section 6.01 applies only to landfills, as opposed to all types of waste management facilities based on the definition of “landfilling site” which is defined as a waste disposal site where landfilling occurs.

While section 6.01 certainly applies to new landfills within the province, it could also potentially  be read to apply to expansions of existing large landfills as well. Section 6.01(3) states that the section applies “in respect of a proponent who wishes to proceed with an undertaking to establish a waste disposal site that, (a) is a landfilling site; and (b) is subject to this Part.” While the plain meaning of “establish”, which connotes the initial or first approval and construction of a project, is consistent with the meaning used within the Environmental Protection Act in the context of waste disposal sites, “establish” is not defined within the EAA itself. This leads to the possibility that the unique characteristics of any landfill expansion could lead to an interpretation that the expansion involves the establishment of a waste disposal site. If that interpretation is adopted, then that has huge ramifications with respect to the future availability of landfill capacity in Ontario, exacerbating even more the imminent waste disposal crisis in Ontario.


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.

 

About the Authors

Harry Dahme is a partner in Gowling WLG’s Toronto office and past leader of the firm’s Environmental Law Group. He has practised exclusively in the area of environmental law since 1984, and has a solid reputation as one of the foremost environmental lawyers in Canada. Harry is certified by the Law Society of Ontario as a specialist in environmental law, and is described by Who’s Who Legal: Canada 2014 as “widely regarded as a leading authority in the field,” by Legal 500 Canada 2017 as “absolutely fantastic” and by Acritas Stars 2017 as “an acknowledged expert in environmental law.”
Jessica Boily is an environmental lawyer in Gowling WLG’s Toronto office. Her practice focuses on environmental litigation, drawing on her commercial litigation background to achieve successful and cost-effective outcomes. She uses her procedural expertise and technical knowledge to advocate for her clients. Jessica understands that complex disputes require creative scientific and legal approaches. Her clients appreciate her practical advice when managing and resolving multi-party environmental disputes. When litigation is necessary, her clients know her courtroom and tribunal experience will help them achieve the outcome they want.

Lessons Learned on Collection Policies in Ottawa

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Written by the Continuous Improvement Fund

In anticipation of the curbside collection contracts renewal, pending regulatory/policy change and the development of a 30-year Solid Waste Master Plan, the City of Ottawa retained Dillon Consulting Limited (Dillon) to complete a study and develop a curbside collection model. The model assisted the City in identifying the most cost-effective curbside waste collection system to help support increased waste diversion and reduce residential garbage, while also considering greenhouse gas impact, and cost of implementation.

The Microsoft Excel model was designed as a tool to assist staff in developing curbside collection options and/or new policies. It is based in Microsoft Excel.

The different waste diversion policies that were considered in the model were:

  • Bag/container limits for garbage
  • Pay As You Throw
  • Clear bag program for garbage
  • Containerized garbage program
  • Mandatory participation in diversion programs
  • Material bans e.g., grass clippings, organics and recyclables in garbage

The collection options considered in the model were:

  • Status quo
  • Weekly co-collection of blue/black box
  • Status quo level of service with a 4-day collection week
  • 4 day collection week
  • Status quo with separate weekly leaf/yard waste collection
  • Separate bi-weekly leaf/yard waste collection
  • Weekly collection of recyclables and leaf/yard waste

The model requires input of household information, collection seasons/periods, materials collected, truck compartment and utilization parameters, collection factors, collection costs and waste tonnage breakdown by material type to establish a baseline scenario, which is then used to compare against several different collection and policy options. It can compare new collection and policy options against status quo parameters including costs, vehicles required for servicing, diversion rates, and greenhouse gas (GHG) impacts.

Modeling required resources and system performance

Designed for adaptability, the model will allow other Ontario municipalities to analyze their integrated waste collection system by revising the inputs to the model and waste collection program policy customizations. The model produces several estimated outputs, including:

  • Number of trucks required (per season, per collection stream);
  • Number of hours required to collect materials (per season, per collection stream);
  • Annual cost per household and per person ($);
  • Capture rate (kg/person);
  • Diversion rate (%); and
  • GHG impacts (tonnes CO2 equivalents per year).

Note that this study only looks at residential households that receive curbside collection and does not include bulk material collection.

Lessons learned in Ottawa

Key outcomes of the modelling exercise for Ottawa were:

  • Higher curbside collection costs are attributed to weekly co-collection of dual stream recyclables and leaf/yard waste over a four-day collection week due to the number of vehicles required.

  • The lowest collection costs are for the status quo, and separate weekly or bi-weekly leaf/yard waste collection due to a lower number of vehicles being required than the other scenarios. Separate bi-weekly leaf/yard waste collection may produce less CO2 equivalents per year than status quo for all policy scenarios modeled.

  • Weekly co-collection of blue/black box under a four-day collection week is likely to produce the most CO2 equivalents per year due to the number of vehicles required and hours collecting waste materials.

  • There appears to be a correlation between cost effectiveness and greenhouse gas emissions; higher costs are attributed to model runs that have the higher number of CO2 equivalents per year.

  • Enforcement is key.

New study in the publication Nature finds compostable coffee pods a superior alternative to plastic pods

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Written by Calvin Lakhan, Ph.D, Co-Investigator: “The Waste Wiki” – Faculty of Environmental Studies at York University

Recently, the esteemed academic journal Nature, published a study by University of Tennessee – Knoxville, which undertook a Life Cycle Assessment of compostable coffee pods. This study specifically examined the economic and environmental viability of compostable pods, relative to more conventional alternatives made from plastics.

The study found that compostable coffee pods readily broke down when included as part of the organics stream, resulting in both a cost savings of 21% relative to disposal, in addition to *improving* the quality and value of the compost.

These findings largely echo what was observed in a York University study conducted in the fall of 2018, which found that compostable coffee pods readily broke down in existing composting facilities in Ontario, and resulted in superior economic and environmental outcomes when compared to plastic and aluminum pods.

Why these findings are of particular importance in an Ontario context, is that detractors of compostable pods (which include the City of Toronto, Environmental Defense etc), continue to question the viability of compostable pods in existing composting facilities, and have even gone so far as to claim that the majority of compostable pods are being landfilled. Not only is this not true, but it adds further confusion to the conversation surrounding what materials are suitable for the green bin program.

The University of Tennessee study adds further credence to our initial findings, and adds some much needed clarity to a topic that is increasingly becoming politicized.

For any questions, comments or concerns regarding the York University study, please contact [email protected].

Goal Setting in a post Covid waste world: How have our priorities changed? What comes next?

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Written by Calvin Lakhan, Ph.D, Co-Investigator: “The Waste Wiki” – Faculty of Environmental Studies at York University

Prior to almost every facet of our world being upended by a terrible and unexpected pandemic, stakeholders were working closer and closer to what some may even call a consensus with respect to waste management. Terms like circular economy and zero waste were not just buzz words, but the cornerstone of emerging waste management policy at both local and federal levels. Both brand owners and municipalities alike scrambled to find ways to transition away from single use packaging, promoting sustainable, recyclable and reusable products to help break our addiction to disposable packaging. Plastics in particular was a term often viewed with derision, with the federal government announcing a Zero Plastic Waste initiative. Several large CPG companies followed suit, making lofty declarations of going “Plastic Free”.

It’s funny just how much can change in a matter of months.

COVID has given the entire industry (and world) a moment to pause and really ask ourselves “What it is that we want to achieve? What are the steps we need to get there? Who are the people/organizations/sectors that need to be involved? and What time frame are we operating under?”

Now some of you may be asking, why on earth would our goals change just because of COVID? Isn’t it best to keep working towards the goals and aspirations that we currently have? In short, the answer (in my opinion) is no.

While I don’t intend to come across as arrogant or some sort of authority on the topic, I have held (and voiced) significant concerns regarding existing approaches towards waste management policy and practices,  and attempted to highlight that the goals we actually had were more aspirational than pragmatic.

Consider the following statements (all actual goals)

1)    Canada will move to divert at least 75% of plastic waste from federal operations by 2030 (Canada)

2)    Canada will move to ban single use plastics by the year 2021

3)    Toronto will divert 95% of all waste by the year 2050

4)    The Province of Ontario will divert 30% of all wastes by 2020, 50% by 2030 and 80% by 2050

5)    The Ellen Macarthur Foundation’s goal is to ensure that 100% of all plastic packaging is designed to be fully reusable, recyclable and compostable (waste to energy DOES NOT count)

All of the above goals represent a tremendous amount of work and thought by individuals and organizations far smarter than me – however, when examining these goals through the lens of a sustainable framework, we see some of the practical challenges that arise, particularly in a post COVID world.

Where is the Data?

To me, the biggest challenge facing our waste management sector is a complete lack of data, most of which is necessary information before we can even begin designing policies and systems that are more sustainable in the long term.

As an example, if Toronto would like to divert 95% of all waste by the year 2050, it would seem prudent that we know just how much waste we are talking about. What so few people understand is that the figures we see regarding waste generation, waste recovery, percentage of material recycled/diverted etc. are largely based on best guess estimates.

Sometime last year, I remember coming across a news headline that boldly stated “Canada is only recycling 9% of its plastics”. The idea that a country as “green” as Canada could be doing such a poor job was almost unfathomable – both the public and policy makers alike demanded to know how we could do better. My response was perhaps more muted, and my first question was “How do we even know how much plastic we are generating the first place?”( ? (Please see my previous article https://advancedwastesolutions.ca/separating-fact-from-fiction-are-we-really-only-recycling-9-of-plastics/))

The picture that was painted for the public was heavily sensationalized – plastics are piling up in our landfills, in our waterways, and now, more than ever, consumers needed to stand up and say “NO MORE!” to single use plastics. It was an easy message to get behind, and suddenly, plastics was public enemy number 1.

Digging a little bit deeper into the issue (and the study behind the headline), it was quick to see that the projections surrounding plastic generation, recovery etc. were all modeled, using a set of heavily caveated assumptions. Without delving into an excessively long technical discussion surrounding how those figures were modeled, in short, I can say with confidence that we do not know how much plastics is being recycled – nobody does.

I don’t think many people, both within and outside the waste sector, truly understand just how little data publicly exists when it comes to waste.

As a thought exercise, which of the following information do you think we have?

1)    Total quantities of plastics (or any material) generated and sold into Ontario in the last calendar year (both residential and IC&I)?

2)    How many tonnes of potentially recovery materials ending up in landfills?

3)    The costs of attempting to recycle material at end life? (if recyclable)

4)    What quantities of waste are being self-managed on site for commercial generators which discusses on site material management in greater detail)

5)    Estimates to determine long term landfilling capacity for both residential and IC&I sources

6)    Detailed and methodologically defensible waste auditing strategies to approximate for the waste generation profiles of individual municipalities (both single family and multi-residential),

7)    A detailed overview of waste management infrastructure currently available. This includes the number of material recycling facilities, transfer stations, depots, as well as information regarding the operational capabilities of each of these sties (capacity, throughput etc.)

8)    A mass balance of where materials that is recycled, goes (what end market? In what application? Etc.)

9)    Credible and publicly accessible data pertaining to the waste generation and recovery from the IC&I sector

10) A common data repository managed by an independent body that is responsible for collecting, maintaining and analyzing data pertinent to the waste management sector that can be used to assist in policy formulation and decision making.

For all intents and purposes, we don’t have any of the above. You would be genuinely shocked just how many stakeholders overestimate how much data we have, or what can be done with it. My professional career is full of anecdotes involving stakeholders who would conduct waste audits with no consideration of sample stratification or how to develop a time series. Perhaps the most egregious example was working on a project that modeled future landfilling requirements and lifespans based on a single (and unrelated) variable. While we could probably spend a very long time debating who’s fault that is, and point fingers at one another, it doesn’t change the fact that the state of data in the waste management sector is poor. In many ways, policy planners have actually done a commendable job in doing what they have been able to given the patchwork of reliable information that exists.

However, if COVID-19 has given all of us a reason to pause, we may as well pause and see whether the data that we have, or have access to, is supportive of our ambitious goals. The lack of “good data” poses numerous challenges, namely, how we do we develop *realistic* goals that we can track, measure and work towards. What is of critical importance is that any discussions surrounding waste management policy and programming *must* be rooted in sound data. This is particularly true of any potential legislation that involves the IC&I sector – we cannot develop a potential solution for encouraging diversion in these sectors, without having a sense of the size and scale of the problem.

Vowing to keep all plastics out of landfills is a commendable goal, but only if we could tell you how much there is to actually keep out.

The importance of goal setting

The discussion surrounding data’s role in helping develop goals is a useful segue into the second part of this paper – the importance of goal setting.

As noted above, goal setting is critical for the success of a waste management program, however, goal setting should ideally address the following characteristics:

1)    What is the goal, and what am I measuring?

2)    Is my goal realistic given access to existing information, resources and infrastructure?

3)    Is there consensus about what the goal should be among stakeholders?

4)    If different stakeholders have competing goals/objectives, how do we encourage collaborative dialogue to avoid antagonism?

5)    Is there quantifiable metrics to track and measure progress towards my goal?

6)    Am I able to change my goal in response in new situations or information?

7)    How will I know if I have achieved my goal?

8)    How can I monitor the results of my goal over time to ensure continued success?

9)    How do set new goals once our initial goal has been reached?

What makes goal setting in waste management particularly problematic (beyond the lack of data), is the lack of consensus regarding what it is we are trying to achieve.

As noted earlier, there was a significant amount of momentum across the sector to work towards a circular economy and achieve zero waste – however, despite this seeming consensus, there are multiple paths to achieving a particular outcome, with very different sets of winners and losers depending on what we choose to prioritize.

To use a practical example, let’s revisit the City of Toronto’s 95% diversion target by the year 2050. In this case, our goal is diversion, and we are measuring % of total waste diverted relative to overall quantities of waste generated. As noted prior, we have acknowledged that there are data concerns regarding credibly quantifying total generation, but let’s set that aside for a moment.

In my opinion, while the 95% diversion target is certainly an ambitious and aspirational goal that we should strive for, it is not something that I would characterize as being readily achievable, for two reasons: 1) Weight based key performance indicators, and 2) The definition of diversion.

1)    The foremost issue is that diversion is a weight based KPI, in a world where our packaging and products is becoming increasingly lighter and lighter. This phenomenon, which has been characterized as the evolving tonne by the likes of industry experts @Chaz Miller and @Mariah Kelleher, shows that the proliferation of light weight, composite materials results in materials that are volumous, but not heavy. Compared to the average mix of materials found in the Blue Box a decade ago, current materials are anywhere from 15-25% lighter.

Why this maters is that a diversion target (measured against total waste generation), is inherently going to be handicapped by the fact that the total tonnes being managed in our waste management system is decreasing over time. It is also worth noting that the types of materials that will need to be collected to achieve incremental diversion will be difficult to recycle material. These materials are often incompatible with existing collection and processing infrastructure, with limited end market applications. In short, there is very little economic incentive to recover these materials – the economics of diversion, and more specifically, recycling, is often untenable (to be discussed in greater detail later in this paper)

2)    While other jurisdictions (i.e. Belgium) have significantly higher diversion rates for their residential recycling programs, the way we choose to define diversion in Ontario differs. In certain jurisdictions, waste to energy (the 4th R), is considered a viable method of keeping materials out of landfills. However, in Ontario, waste to energy is not considered a viable form of diversion. While this short article is not intended to debate the merits or viability of waste to energy, I do want to highlight that the goals that we set should be consistent with the infrastructure and rules we have in place.

In short, it is impossible for Toronto to reach their goal of 95% diversion without considering some form of energy to waste facility. Even if we assume an idealized scenario where all households put their waste in the appropriate Blue and Green bins, residue losses at sortation facilities often range from 8 – 12%.

Balancing goals with our budgets

Returning to the topic of economics, it is impossible to develop sustainable waste management goals without carefully considering the economic impacts of attempting to realize those goals.

As noted in an earlier section of this paper, some of the goals we have defined for the waste management sector include the recyclability of products/packaging. The Ellen MacArthur foundation has even gone so far as to say that ALL products must be made up of materials that can either be recycled, reused or composted.

While this goal is certainly commendable and something that should be worked towards, it is also not realistic given the practical constraints of existing waste management systems. Even prior to the COVID pandemic, the recycling industry for printed paper and packaging was already on extremely unsteady legs as a result of the Chinese National Sword. These effects were only exacerbated by the impact of COVID, which has essentially pulled the rug out on commodity pricing and adversely impacted the flow of markets. In some instances, virgin resin is cheaper than recycled resin, and is threatening to undo years of progress with respect to increasing recycled content in consumer goods.

What industry will do in response to this crisis remains uncertain – there is no guarantee that recycled markets will recover in the immediate future. Policy planners are now facing the very real choice of continuing to pursue a goal of recyclability/compostability/reusability, despite a rapidly changing landscape that is extraordinarily difficult to predict and plan for. In turn, manufacturers must make design decisions today that will have an impact on their operations for months, if not years to come.

Second chances: Plastics, can we try again?

While COVID has provided the waste sector with an opportunity to pause and evaluate both short and long term priorities, perhaps the most interesting (and unintended) impact is how attitudes towards plastics have shifted.  Historically, the characterization of single use plastics is that they are terrible and should be discouraged. However, in a post COVID world, both households and retailers are at a heightened state of anxiety with respect to product safety. Suddenly the individually wrapped cucumber and the plastic bag of apples doesn’t seem quite as silly as before, as it minimizes direct food handling and helps mitigate against the risks of contracting or spreading the virus. Increasingly, both consumers and retailers are looking for opportunities to minimize the risk of contamination (largely through direct handling of a particular item), while simultaneously increasing shelf life, both at the store, and in the home. The use of plastic packaging, particularly plastic film, has been shown to act as a barrier to bacteria and viruses, while also promoting product longevity and avoiding food waste/spoilage.

Plastic has also played a critical role with respect to personal protective equipment. While these items are largely characterized as single use (i.e. plastic gloves), the relative scarcity of PPE relative to the overwhelming demand demonstrates that there are no readily available substitutes that can be used in lieu of plastics. Whether we like to admit it or not, plastics plays a vital role in the war against COVID, and decisions to ban or limit the use of plastics can have detrimental and unanticipated impacts. Very rarely are material bans an effective long term waste management strategy – generally speaking, optimal outcomes are born out of giving manufacturers more options, not less.

What the COVID pandemic has demonstrated is that plastics have a role to play in our economy, but we need to recognize that not all plastics are created equal, and by extension, not all goals are going to apply to everything, everywhere. Perhaps one of the biggest failings of the prior framing of the plastics issue, is that the topic was often characterized in binary terms: Good/Bad, For/Against. No issue, particularly one as nuanced as product design for the environment and end of life, can ever be distilled into a clear black and white answer. The same consumers who were calling for plastic bans are now the same ones clamoring for plastic gloves. Of note, the momentum behind reusable and refillable packaging has also come to a grinding halt as a result of COVID. Many retailers have pressed the pause button on implementing reusable packaging at a wide scale, while many of the mediums in which reusable/refillable containers are encouraged (e.g. using a refillable mug for coffee) have been abandoned temporarily until the pandemic begins to abate. In addition to the normal risks associated with cross contamination when allowing used containers into a retail space, consumers have expressed ambivalence about the risks associated with COVID.

I use this aforementioned example to demonstrate that opinions and attitudes are often malleable, while infrastructure and legislation are not. Responding to changes in consumer sentiment or political will, must be weighed against what can reasonably be achieved given resource and time constraints.

While the COVID crisis will ultimately be seen as a black stain in our history, it does present a unique and fairly rare opportunity to take stock of our waste management system, and decide what should come next.  This unprecedented situation highlights that we need to crawl before we can walk, and walk before we can run. Setting ambitious goals is definitely something that should be encouraged – however, ambition is not the same as hubris. Without data, stakeholder consensus, jurisdictional harmonization and the ability to monitor, evaluate and re-calibrate our goals, we are setting the sector up for failure. Always keep in mind that the goals of today, are not necessarily the goals of tomorrow – as COVID has demonstrated, life can change when we least expect it.

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About the Author

Calvin Lakhan, Ph.D, is currently co-investigator of the “Waste Wiki” project at York University (with Dr. Mark Winfield), a research project devoted to advancing understanding of waste management research and policy in Canada. He holds a Ph.D from the University of Waterloo/Wilfrid Laurier University joint Geography program, and degrees in economics (BA) and environmental economics (MEs) from York University. His research interests and expertise center around evaluating the efficacy of municipal recycling initiatives and identifying determinants of consumer recycling behavior.

 

Removing Contaminants from Landfill Leachate using Electro-Oxidation

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Written by Nicole Bolea, PE, Xogen Technologies Inc.

More than just ammonia removal…

Previously the application of Advanced Electro-Oxidation, AEO, technology was shown to be a viable option for ammonia removal from landfill leachate.  Though ammonia is a major problem and still a target, recent testing and piloting has shown Advanced Electro-Oxidation destroys many more contaminants in addition to removing ammonia to non-detect levels.  New recent testing and piloting shows promising data for Boron and color reduction.

Landfill Leachate: An Expensive Challenge

A growing number of landfills are seeing increases in costs and issues associated with trucking leachate and sending it to the sewer.  According to the U.S. Geological Survey landfill leachate hosts numerous contaminants of emerging concern[1].  This is forcing landfills to reevaluate their systems to treat or pre-treat onsite.

Advanced Electo- Oxidation: How it Works

Screened leachate is pumped through Xogen’s reactor. When the leachate contacts an electrode in the reactor a direct oxidation of the contaminants occurs on the surface of the electrode. Indirect oxidation in the bulk occurs as well from the generation of highly oxidizing species including ozone, hydrogen peroxide and hydroxyl radicals.  As these highly oxidative species form they immediately react with organic matter, ammonia compounds and other constituents in the aqueous solution and get converted into a mixture of hydrogen, oxygen, carbon dioxide and nitrogen gas. Suspended solids in the wastewater will precipitate or float to the surface by the micro-bubbles of gas generated while pathogens are completely killed[2]. This method results in not producing hazardous waste streams that are costly to deal with.  There is no concentrate stream or biosolids produced, the contaminants are destroyed into inert gases that are mixed and vented at safe levels.

 

Contaminant Removal Data

Along with ammonia, AEO has the potential to reduce or completely remove: COD, BOD5, Boron, nitrates, pharmaceuticals, sulfides, H2S, phenols, poly vinyls, cyanide, and E. Coli (resulting in complete disinfection). Piloting a large sample of landfill leachate from the Midwest revealed the potential to remove Boron. Boron reduction by approximately 50% was observed during this pilot. The testing was performed at the pilot plant located on the University of Massachusetts Amherst campus. The campus boasts an impressive piloting and testing system t

Sample before and after AO treatment

hat is part of the Water Innovation Network for Sustainable Small Systems, WINSS. Their vision is “To develop technological solutions that can be readily implemented by small systems. To reduce barriers to their use by utilities. To stimulate research for small systems among the academic and entrepreneurial community. To develop new models for technology & educational outreach in support of small systems”[3]

When discharging leachate to the city sewers color can be a major concern for small communities. The color produced from landfills can inhibit the city’s ability to disinfect with UV later in their process before discharge. Below is a picture and graphical data showing the color reduction potential with AEO.

When discharging leachate to the city sewers color can be a major concern for small communities. The color produced from landfills can inhibit the city’s ability to disinfect with UV later in their process before discharge. Below is a picture and graphical data showing the color reduction potential with AEO.

The picture helps show the color reduction potential, but UV visual spectroscopy testing was also performed to quantify the affect AEO has on color. Along with color in this testing, COD was reduced by approximately 50% with complete ammonia destruction to non-detect levels.

Conclusion

Along with removing ammonia to non-detect and nitrogen to very low levels, Advanced Electro-Oxidation will remove and destroy many more contaminants. The ability to remove many CECs at once has the potential to be a cost-effective onsite treatment option for landfills. A special thanks to the professionals, professors, and students at UMass Amherst for testing and piloting landfill leachate, wastewater to show the potential for Advanced Electro-Oxidation.

 

Multi-criteria decision making framework for plastic packaging: An expanded life cycle approach

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Written by Calvin Lakhan, Ph.D., Co-Investigator: “The Waste Wiki” – Faculty of Environmental Studies at York University

This white paper is a general overview of a tool being developed by York University and Pollution Probe to help stakeholders better understand the impacts (environmental, economic and social) of plastics with respect to product and packaging design. Our goal is to provide methodological guidance and create a common set of evaluative criteria that stakeholders can use to make informed decisions regarding plastics. This includes the development of an expanded life cycle analysis model, that attempts to model the economic, environmental and social impacts of plastics, at all stages of its life.

Often times, one of the greatest obstacles in the debate surrounding the role of plastics in a circular economy is that we either operate on incomplete information (i.e. how much is actually being generated and diverted), or we fixate on one component of a products life cycle (i.e. recycling at end of life), and evaluate its viability through that narrow lens.

It’s our hope that this tool (and more broadly, the methodological approach), be used in a way to ensure that stakeholders have clear and prescriptive guidance regarding what needs to be considered when making product design and policy decisions.

**Note: The development and dissemination of the expanded life cycle analysis tool is contingent on raising sufficient funding and support from stakeholder groups. If funding can be secured, the anticipated deployment of this tool will be in Fall of 2020.**

Issue Overview

Plastics have transformed everyday life, with more than 400 million tonnes of plastic and plastic products being generated every year across the world. While plastics often bring many societal benefits and play an instrumental role in manufacturing, technology, healthcare etc. there are significant concerns regarding the quantities of plastic waste being discarded into the environment. In Canada, it is estimated that only 10% of all plastics produced in the country are actually recycled, with the balance accumulating as waste in landfills, public spaces, water ways and oceans. This accumulation of plastics entering into terrestrial and aquatic ecosystems poses acute risks to both human and animal health, with bio-accumulation of plastics being observed as causing endocrinological disruptions to wildlife. It is with this in mind that in January of 2020, the Canadian federal government announced a proposed ban on single use plastics items by the year 2021. This decision was informed by a report commissioned by Environment Canada concluding that single use plastics posed significant risk to the environment resulting from both their manufacturing and disposal.

While this decision has generally been met by a favorable response from both environmental groups and the public, there remain significant questions regarding what single use plastics will be banned. There remains considerable uncertainty regarding what the rationalization and methodology for evaluating which materials should be banned, in addition to the short and long term economic implications resulting from a single use plastics ban.

However, despite the findings of the Environment Canada report, and the prevailing negative sentiment surrounding plastics, and particularly plastic packaging, it is important to recognize that not all plastics are created equal. While the vast majority of plastics are made from ethylene derived from hydrocarbon sources, there exists a significant heterogeneity with respect to the types of resin (polyethylene, polypropylene, polystyrene etc.), including how it is made, how it is used, why it is used and what can be done with it at end of life.

Many of the environmental concerns attributable to plastics tend to be focused on the manufacturing stage and available end of life waste management options. It is during these two stages that the release of macro plastics (pieces larger than 5mm) and micro plastics (pieces smaller than 5mm) into the environment is considered highest.

While the Environment Canada report undertakes a comprehensive literature review to determine the risks posted to both human and ecological health attributable to plastics in our environment, it does not offer any guidance regarding which plastics to ban, or provide an evaluative framework that can assist decision makers in identifying problematic materials.

One of the dangers of characterizing all single use plastics the same way (bad for the environment, should be banned etc.), fails to capture the complexity and nuances of plastics, particularly for packaged goods.

This white paper outlines a potential evaluative framework for examining the environmental, economic and social impacts of plastic materials (with a specific emphasis on household plastic packaging). The purpose of this framework is to provide both policy makers and plastic producers with a decision making tool that captures the latest in life cycle thinking and consequential impacts (both economic and social), resulting from proposed material bans.

Life Cycle Analysis Thinking

Life cycle thinking for the purposes of informing policy decisions is not a new phenomenon – in fact, many of the studies included in the Environment Canada literature review included a life cycle component when evaluating the environmental safety of various packaging types.

However, most contemporary approaches to life cycle analysis, particularly within the context of end of life management of packaging waste, define system boundaries that are too limited in scope. Often times, model boundaries are defined from the point of disposal, to its final end use application (recycling, composting, energy from waste, or landfilling). The environmental impacts of a particular end of life option are compared against a baseline assuming 100% virgin production (i.e. Recycling 1000 tonnes of PET, would be compared against the environmental impacts of producing 1000T of virgin PET, with the delta in LCA key performance indicators being the measured impact)

The vast majority of life cycle analysis specific to waste management and material design is only concerned with what happens to an item once it reaches its end of life. It is through this lense that many plastics, particularly single use plastics, are deemed to be environmentally problematic. In many instances, particularly for light weight and composite plastics, these materials cannot be readily managed in existing waste management infrastructure.They either cannot be recycled or composted, and even when sorted at a material recovery facility, there are limited end markets for most non PET and HDPE plastics.

As a result, the characterization of these materials is often seen as being “bad” for the environment, with many environmentalists and municipalities pointing to the lack of recyclability as being the primary driver for banning single use plastics. In the absence of recycling or reuse, there is no offset to the environmental burdens associated with virgin production of these plastic materials. If these materials end up in a landfill, the risk of entering into our environment and disrupting both aquatic and terrestrial eco systems increases.

While this outcome may lend credence to the decision to ban single use plastics, it fails to account for the upstream impacts (economic, environmental and social) of a material, prior to consumption. In spite of many single use plastics possessing low levels of recyclability, potential benefits attributable to plastic packaging include:

  • A reduction in the amount of materials used. The transition to plastics for many products has resulted in the light weighting of materials – less physical material is used to make the product.
  • Logistical efficiencies (more material can be transported per shipment) – largely attributed to the reduction in overall weight, the use of light weight and composite plastics has resulted in a reduced emissions footprint related to the transport of materials.
  • Increased durability, longer shelf life (both in the store, and in the home), and allowing for discretionary consumption (you only use what you need). This is particularly true of plastic food packaging. As an example, a laminate package for soup (in lieu of the conventional tin can) allows users to reseal the pouch, allowing it to be stored longer and avoiding waste.

This white paper expands the list of criteria for what should be considered in a life cycle analysis, as a means to create more informed and defensible policy decisions.

 Expanding life cycle criteria

This white paper recommends expanding the boundaries of a life cycle analysis to capture criteria such as material reduction/light weighting, logistical impacts attributable to light weighting, effects on useful product life (both at the store and in the home for perishable items packaged using plastics), discretionary consumption, direct and indirect economic impacts, available waste management infrastructure, risks when landfilled and risks when incinerated.

Table 1 below summarizes what variables are included in the proposed expanded life cycle analysis. It is important to note that depending on the scenario and circumstances being modeled, not all criteria will apply (nor have all criteria been defined)

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The above KPIs include both quantitative measures (i.e. $ cost per tonne managed,) as well as qualitative variables that provides useful contextual information that can better inform decision making.

While expanding our life cycle approach to capture these variables may result in a more time and data intensive life cycle analysis, adopting this methodology is critical in understanding the “true” impact of plastics, particularly single use plastic packaging. In theory, a comprehensive life cycle analysis is intended to capture the aforementioned components, however, there is little methodological guidance with respect to how to do that, and for which materials can it be applied. Further complicating the inclusion of these additional variables is an issue of measurement – how can we measure things like waste reduction, shelf life etc?

Development and Deployment of Expanded Life Cycle Analysis Tool

York University and Pollution Probe are currently working together in order to develop an expanded life cycle analysis calculator that includes the aforementioned components shown in table 1 above. Accompanying this tool will be a guidance document that explains how to measure and weight the above KPI criteria, and how to interpret the output in a meaningful way to help inform decision making.

This purpose of this tool is four fold: 1) allow users to capture life cycle impacts that have traditionally been omitted from previous investigations into LCA or plastic packaging 2) provide an evaluative framework to stakeholders who are looking to evaluate and compare the economic, social and environmental impacts of different types of plastic materials 3) quantify the environmental and economic affects attributable to potential programmatic changes (i.e. a ban on LDPE film), or allow users to model multiple scenarios to see how various options compare (i.e. landfilling all LDPE film, or recycling all LDPE film).

The tool that will be developed and distributed by York University and Pollution Probe will be populated with default data and assumptions (reflecting Ontario specific transportation distances, energy grid mixes, available infrastructure, and material management costs). Users will have the ability to change the underlying assumptions to better reflect differences in their particular jurisdiction, or model scenarios involving trans-jurisdictional management of waste. York University and Pollution Probe can also work closely with stakeholders in developing a more granular expanded life cycle calculator that pertains to the specific operations of a particular organization or municipality.

In the absence of conducting an expanded life cycle analysis, policies and decisions may not be fully informed, potentially resulting in inferior economic, social and environmental outcomes. Using an expanded life cycle approach is intended to capture both the upstream and downstream impacts of plastics, with the intention of helping stakeholders arrive at the most sustainable outcomes.

It is important to note that the most sustainable outcome isn’t necessarily the one that diverts the most material. Understanding what impact material decisions will have on cost (both in terms of material management costs and indirect impacts on the price of packaged goods), and which groups are most likely to be adversely impacted by changes in cost, access or availability, is critical in sustainable materials management.

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About the Author

Calvin Lakhan, Ph.D, is currently co-investigator of the “Waste Wiki” project at York University (with Dr. Mark Winfield), a research project devoted to advancing understanding of waste management research and policy in Canada. He holds a Ph.D from the University of Waterloo/Wilfrid Laurier University joint Geography program, and degrees in economics (BA) and environmental economics (MEs) from York University. His research interests and expertise center around evaluating the efficacy of municipal recycling initiatives and identifying determinants of consumer recycling behavior.

Business as (Un)usual in British Columbia: EMA Authorization & Compliance Requirements Remain in Effect during the Pandemic
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Written by Selina Lee Anderson and Paul R. Cassidy, McCarthy Tetrault

The BC Government has acknowledged that while the province’s response to the COVID-19 pandemic may have impacts on the day-to-day operations of regulated activities under the Environmental Management Act (EMA), authorization requirements remain in effect and it is expected that all reasonable measures should be taken to comply with EMA conditions. While the BC Government has not provided any guidance on what constitutes “reasonable measures”, determining what reasonable measures are will require a contextual analysis. In particular, businesses whose operations and compliance capabilities are materially challenged by the pandemic will need to engage in a risk assessment review not only to determine where the risk to the environment is the greatest from their operations, but also to provide justification in the event of non-compliance. Once a risk assessment has been completed, businesses will be in a better position to adjust the allocation of staff and other resources (if needed) for managing higher risk operational activities. Businesses with operations in BC are encouraged to maintain proper monitoring and record keeping in order to demonstrate that all reasonable measures (including appropriate mitigation measures) were taken to avoid non-compliance with EMA authorization requirements. In addition, businesses may wish to review EMA authorization requirements and develop contingency plans to ensure that their operations are maintained in compliance with permit obligations during this period of pandemic response.

If an EMA authorization holder encounters a non-compliance issue, the Ministry of Environment and Climate Change has asked that they provide notice to the Ministry by email at [email protected]. The authorization holder should identify the compliance issue(s), rationale and mitigative measures being taken. The Ministry has indicated that in addressing non-compliances, it will take into consideration the directives and guidance issued by the provincial Public Health Officer.

The Ministry has also advised that it currently has staffing resources in place to maintain all core business functions. All electronic mailboxes and normal communication channels remain open and are being monitored regularly. Authorization holders should contact the Ministry through all the usual channels. All meetings with the Ministry will be handled by phone or online.

To discuss options for managing your regulatory compliance obligations, or if you have questions about the impact of COVID-19 on your business generally, please contact your McCarthy Tétrault trusted advisor or one of the authors.

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About the Authors

Selina Lee Anderson is a partner in McCarthy Tetrault’s Vancouver office and a member of the firm’s Environmental, Regulatory and Aboriginal Group, Energy & Mining Group, Retail and Consumer Markets Group, Defence Initiative and Asia Group. Recognized for her in-depth knowledge and range of experience, her practice focuses primarily in the areas of environmental law, corporate/commercial law, regulatory law, compliance, and Aboriginal issues in the energy and natural resource sectors.

Paul R. Cassidy is a partner in McCarthy Tetrault’s Business Law Group in Vancouver and co-head of our National Environmental, Regulatory & Aboriginal Group. One of the most respected practitioners in the space, his deep industry business knowledge is without comparison. International investors routinely seek his advice on the regulatory environment for doing business in Canada.

 

Alberta becomes the first Canadian province to modify environmental reporting rules in the wake of the COVID-19 pandemic

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Written by Alan Harvie and Kellie L. Johnston, Norton Rose Fulbright

On March 30 and March 31, Alberta’s minister of environment and parks passed a slew of ministerial orders (the Orders) modifying certain industrial environmental reporting requirements in Alberta. The Orders were passed pursuant to s. 52.1(2) of the Alberta Public Health Act and are further to order-in-council 080/2020 that declared a state of public health emergency in Alberta due to the COVID-19 pandemic.

Ministerial order 15/2020

Ministerial order 15/2020 extends the deadline to submit compliance reports and emissions reduction plan reports under sections 36(8) and 36(9) of Alberta’s Technology Innovation and Emissions Reduction Regulation from March 31, 2020, to June 30, 2020. Ministerial order 15/2020 can be found here.

Ministerial order 16/2020

Ministerial order 16/2020 extends the deadline to submit reports for the 2019 compliance period under sections 10(1), 11(1) and 12(1) of Alberta’s Renewable Fuels Standard Regulation from March 31, 2020, to June 30, 2020. These new deadlines apply to fuel suppliers, approved contributors and renewable fuel providers. Ministerial order 16/2020 can be found here.

Ministerial order 17/2020

Ministerial order 17/2020 suspends all requirements to report information pursuant to provisions in approvals or registration under the Alberta Environmental Protection and Enhancement Act and all requirements to report information pursuant to provisions in licences or approvals under the Alberta Water Act. These suspensions do not apply to reporting requirements for drinking water facilities. Ministerial order 17/2020 also suspends all disposition requirements to submit returns or reports under the Alberta Public Lands Act.

Notwithstanding these suspensions, all approval, registration, licence and disposition holders (Record Holders) are required to continue to record and retain complete information relating to any reporting or return requirements. Upon request, the Record Holders are required to make these records available to Environment and Parks, or the Alberta Energy Regulator where the records deal with energy resource activities. Ministerial order 17/2020 can be found here.

Duration

The Orders shall remain in effect, unless they are sooner continued by an order of the lieutenant governor in council under the Alberta Public Health Act, until the earliest of:

a. August 14, 2020;
b. 60 days after order-in-council 080/2020 is terminated by the lieutenant governor in council, if order-in-council 080/2020 is terminated before June 15, 2020; or
c. the termination of the Orders by the minister or the lieutenant governor in council.

Temporary amendment to select Air Monitoring Directive requirements

In addition to the Orders, on March 31, Alberta Environment and Parks also issued a temporary amendment to select Air Monitoring Directive (AMD) requirements. The amendment allows industrial operations and Alberta airsheds to deviate from select AMD monitoring, siting and reporting requirements. Effective immediately:
i. calibration of ambient analyzers and ambient station manifold and inlet cleaning is now required once every three months for the remainder of 2020;
ii. the requirement to report “calendar day” in AMD reporting forms is removed;
iii. the deadline to complete and submit the 2019 Annual Emissions Inventory Report is extended from September 30, 2020, to December 31, 2020;
iv. the requirement to immediately report exceedances of Ambient Air Quality Guidelines until August 31, 2020, is removed until September 30, 2020;
v. extending until September 30, 2020, the requirement to submit airshed monthly monitoring summary reports and ambient data is extended by two months.

More detailed information on the amendments to the AMD requirements in Alberta, and their specific application, can be found here.

As of April 2, Alberta is the only province that has suspended certain environmental reporting requirements in response to the COVID-19 pandemic. Earlier, on March 26, the assistant administrator for enforcement and compliance assurance at the US Environmental Protection Agency unveiled its own policy to deal with environmental non-compliance in the wake of COVID-19, announcing that the agency would apply enforcement discretion for noncompliance: (i) during the period of the policy; (ii) that results from the COVID-19 pandemic.

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About the Authors

Alan Harvie has practised energy and environmental/regulatory law since 1989 and regularly deals with commercial, operational, environmental and regulatory issues, especially for the upstream and midstream oil and gas, energy, waste disposal and chemical industries. He is a member of Norton Rose Fulbright’s energy and environmental departments.

 

Kellie is a member of Norton Rose Fulbright’s global risk advisory practice. She assists clients to identify, assess and manage current and emerging risks across their global business. Her clients operate in many different sectors, including energy, infrastructure, mining and commodities, agribusiness, transport, retail, institutional investors, financial services, and life sciences.

Australian City Looking at Smarter Approach to Waste Management

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The City of Canterbury Bankston in Australia recently received $2 million in funding under Australia’s Smart Cities and Suburbs Program to work on a project called Closing the Loop on Waste.  Under the project, the city will investigate how it can deliver superior waste management customer service to residents using technology.

These City’s waste management team face several challenges in their quest to manage city waste effectively and efficiently. Other city officials may also relate to the following challenges:

Manual Process: The process of picking up and inspecting waste bins is very manual with little automation, which makes it quite time-consuming.

Real-Time Issues: The process is not well equipped to deal with real-time operations. For example, if an urgent job comes in, it requires phone calls to find someone who can handle it. There is also not a very good view of where all the trucks are in real-time throughout the day.

Data Accuracy: The city knows how many properties they service, but not exactly how many bins are picked up. Bins are also inspected manually, which can result in data errors.

Communication with the Community: The system currently doesn’t allow for proactive communication with citizens to let them know what is happening; instead, they react to citizen requests after they come in, which have to come in by phone call because online/mobile reporting is not set up.

The overall focus of the project is to improve waste management by using things like GPS for trucks, cameras, sensors, and artificial intelligence. Thinking big picture, the Waste Management Team for the City is also looking into how the data they gather in this project can improve other aspects of the City. Although the project is about waste management and sustainability, the main goal is always to improve the overall operations and quality of life in the city. Specific results that Closing the Loop on Waste will hope to achieve include the following:

  • Use advanced analytics to detect bin contamination, identify when waste bins have been missed, and investigate illegal dumping

  • Upgrade residents’ access to information regarding bin collections days and other programmed services

  • Use GPS data and live traffic information, to minimize potential delays on collection routes

  • Enable residents to request services or report incidents, via a real-time and customized format, that takes into account the diversity of the local community

  • Provide residents with notifications, when jobs they’ve requested are completed

  • Enable residents and organisations to upload images of dumped rubbish, which can be assessed before removal

Smart Cities group

Six Things To Consider Before The Coronavirus Impacts Environmental Compliance

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Written by Patrick Traylor, Conrad Bolston, and Misty M. Howell, Vinson & Elkins LLP

Companies with environmental compliance obligations should think carefully about and plan ahead for how the coronavirus outbreak might affect their ability to comply. Depending on the severity of the outbreak, companies may run out of the supplies they need to operate pollution controls, or their environmental compliance departments might become short-staffed, which could result in missed monitoring, recordkeeping, or reporting. Here are six things to keep in mind.

Enforcement discretion. Think about developing a strong argument for why federal and state environmental enforcement agencies should exercise their enforcement discretion not to pursue noncompliance caused by an emergency. The EPA has a long-standing policy that allows for “no action” assurances to be issued to excuse noncompliance during emergencies. The prerequisites for an assurance are stringent, and a requestor must demonstrate that the public interest in excusing noncompliance outweighs the public impacts from the noncompliance. These assurances may only be issued by the Assistant Administrator for the EPA’s Office of Enforcement and Compliance Assurance, so the work of obtaining them must be conducted at EPA Headquarters.

Malfunctions and upset defenses. Think about how malfunction and upset provisions in federal and state regulations and many permits can provide protection against enforcement, but only if the company complies with the prerequisites for these provisions. Each state (and some federal regulations) has different malfunction and upset rules, so it will be important to meet the stringent conditions of these rules before noncompliance will be excused.

Force majeure. Think about whether the company is subject to federal or state settlements that might have a force majeure clause that could excuse noncompliance. Most federal judicial consent decrees have force majeure clauses that could excuse noncompliance, but require that companies use “best efforts” to avoid noncompliance. Companies should carefully review their settlements to see how to comply with their force majeure provisions. And some states have “act of God” statutes under which the inevitable consequences of such events (which may include “other catastrophes”) are deemed to not constitute violations at all.

Impact of staffing challenges. Think about how staffing challenges might affect the company’s ability to comply. With companies beginning to shut down operations, it is possible that environmental compliance staff might not be able to work, and the company might miss monitoring, recordkeeping, and reporting obligations. A company will want to very clearly justify decisions to excuse environmental compliance staff from work, especially if a “no action” assurance is sought or a malfunction/upset/force majeure claim is made.

Don’t forget your supply contracts. Think about the terms and conditions of supply contracts that are critical for environmental compliance and consider taking steps now to make sure suppliers comply with their contracts. If they cannot, think about whether a supply failure could qualify as a malfunction, upset, or force majeure event.

After the storm has passed. Think ahead to when the crisis has passed, and governmental and non-governmental organizations evaluate whether the emergency justified any noncompliance.


About the Authors

Patrick Traylor is a partner in Vinson & Elkin’s Environment and Natural Resources practice and was most recently the Deputy Assistant Administrator for the EPA’s Office of Enforcement and Compliance Assurance in Washington, D.C., where he helped oversee the EPA’s enforcement response during natural disasters.

Conrad Bolston is a senior associate in Vinson & Elkin’s Environment and Natural Resources practice. He has assisted clients with a variety of federal and state environmental enforcement matters, environmental due diligence efforts, regulatory guidance, internal investigations, and litigation.

Misty M. Howell is an associate in Vinson & Elkin’s Environment and Natural Resources practice. She has assisted clients with a variety of federal environmental enforcement matters, due diligence efforts, government investigations, and litigation.