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.

 

New B.C. Program aims to keep organic waste from landfill

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The Government of British Columbia recently announced that it is partnering with the federal and local governments on the new Organics Infrastructure Program. The $30-million program will help communities expand their infrastructure, diverting organic waste away from landfills. It will also help the Province meet its CleanBC commitment to help communities achieve 95% organic waste diversion for agricultural, industrial and municipal waste.

Organic waste currently represents 40% of material sent to municipal landfills in B.C. and generates 7.5% of the province’s greenhouse gas (GHG) emissions. In total, the projects are expected to reduce nearly 300,000 tonnes of carbon dioxide equivalent over the next decade. This is like removingmore than 100,000 cars from the roads for a year.

The Organics Infrastructure Program combines $10 million in federal funding from the Low Carbon Economy Leadership Fund, $10 million from the Province, and $10 million in matching funds from local government applicants and their partners. Among the projects are two from the Central Kootenay Regional District — Central landfill composting facility and the Creston landfill composting facility — that, together, provide the region with food-waste processing capacity for the first time. Another recipient is the Northern Rockies Regional Municipality’s worm composting facility. It will divert organic waste from Fort Nelson’s landfill and create high-quality soil.

“This program will help communities, the Province and Canada meet our shared climate action goals,” said George Heyman, B.C.’s Minister of Environment and Climate Change Strategy. “It will also help build B.C.’s clean economy by creating green jobs and setting the stage for the economic opportunities that come from the reuse of organic materials.” 

“Investing in better infrastructure for waste management will divert organic waste from municipal landfills and turn it into clean and useful compost,” said Jonathan Wilkinson, federal Minister of Environment and Climate Change. “Initiatives such as this one are key to fighting climate change and helping us reach net-zero emissions by 2050. I congratulate the Province of British Columbia for its leadership in this effort.”

Twelve projects have finalized agreements to date. Additional projects are expected to come on board in the coming months. The initial projects are expected to break ground starting in the spring.

Organics Program Receipiants

The 12 projects in 10 B.C. that are to receive funding are listed below. Additional projects are expected to be approved in the coming months. The dollar values below represent the provincial funding portion only. The money will be distributed over three fiscal years to support project planning, design and construction.

Central Coast

  • Central Coast organics compost diversion initiative (Phase 1): $49,092
  • Projected GHG reductions (tCO2e): 950
  • This project, led by the Central Coast Regional District, is the first phase of a composting facility that will allow Bella Coola to divert organic waste from its landfill for the first time and enhance services to the Nuxalk Nation.

Central Kootenay

  • Central landfill composting facility: $776,053
  • Projected GHG reductions (tCO2e): 68,873
  • Creston landfill composting facility: $ 485,745
  • Projected GHG reductions (tCO2e): 15,890
  • Two complementary projects, led by the Regional District of Central Kootenay, will provide processing capacity for food waste for the first time in the regional district. These projects represent strong partnerships within and outside the regional district as one of the facilities will also service part of the Regional District of Kootenay Boundary.

Columbia Shuswap

  • Revelstoke composting facility: $100,000
  • Projected GHG reductions (tCO2e): 61,465
  • This project, led by the Columbia Shuswap Regional District, will allow residents and businesses from the City of Revelstoke and Electoral Area B to divert food waste from the landfill for the first time. Over half the waste entering the Revelstoke landfill is organic. This project will create a usable compost product, prolong the existing landfill life and reduce greenhouse gas emissions.

Comox Valley

  • Regional organic composting facility additional capacity: $484,815
  • Projected GHG reductions (tCO2e): 37,489
  • This project, led by theComox Valley Regional District, means the communities of Campbell River, Courtenay, Comox and Cumberland will be able to compost an extra 1,625 tonnes of food waste per year, supporting the regional district’s waste diversion target of 70% by 2022.

East Kootenay

  • There are three projects being funded in the Regional District of East Kootenay that work together to support a regional system. These projects are in the Columbia Valley, Elk Valley and central subregions, providing coverage throughout the region.
  • East Kootenay regionally integrated resource recovery network: Columbia Valley site: $333,160
  • Projected GHG reductions (tCO2e): 25,442
  • East Kootenay regionally integrated resource recovery network: central sub-region site: $333,160
  • Projected GHG reductions (tCO2e): 13,539
  • East Kootenay regionally integrated resource recovery network: Elk Valley site: $333,160
  • Projected GHG reductions (tCO2e): 42,563

Kootenay Boundary

  • Regional District of Kootenay Boundary organics diversion expansion project: $1,182,006
  • Projected GHG reductions (tCO2e): 2,873
  • This project will expand the regional district’s organics processing capacity to include food-waste materials from the industrial, commercial and institutional sector throughout the Boundary region and initiate food-waste collection for residents of Greenwood. This expanded facility will primarily process food waste, wood, yard and garden waste from the City of Grand Forks.

Northern Rockies

  • Northern Rockies vermicomposting(worm) facility: $222,546
  • Projected GHG reductions (tCO2e): 2,273
  • This project will divert organic waste from Fort Nelson’s landfill through a vermicomposting facility; red wiggler worms work with fungi, bacteria and other invertebrates to transform organic matter into “castings,” which can be used in municipal landscaping or residential gardening.

Okanagan-Similkameen

  • Oliver landfill residential food waste compost facility: $400,000
  • Projected GHG reductions (tCO2e): 4,014
  • This project, led by the regional district, provides the Oliver and Osoyoos landfill service areas with a new composting facility that will process residential food waste, agricultural waste and yard waste. This project is part of a larger regional strategy to manage organic wastes in the regional district. 

Summerland

  • Summerland organics processing facility: $790,500
  • Projected GHG reductions (tCO2e): 24,548
  • The District of Summerland will benefit from the relocated organics processing site as the move will increase capacity, upgrade operational and environmental technology and create high-quality Class A compost streams. The project will divert additional organic waste, preventing it from being landfilled and, therefore, reduce greenhouse gases, while prolonging the existing landfill life.

British Columbia compost facility to close operations

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As reported by The Abbotsford News, a large composting operation is shutting down after the Ministry of Environment said it risked polluting the “highly vulnerable” aquifer beneath it.

The operator of the McKenzie Road site had previously told a government inspector that he didn’t plan to take any action until his facility was legalized by the Agricultural Land Commission (ALC) and the City of Abbotsford. But according to an email sent to neighbours by a Ministry of Environment official, the company behind the facility now plans to immediately close the operation after being threatened with a fine.

Lifesoils Products had been operating at the site for years, despite contravening a host of provincial and city rules. In addition to the aquifer concerns, neighbours were upset about smells, pests and truck traffic and the Ministry of Agriculture said the chicken manure composting posed a biosecurity hazard, because compost piles were located right next to a poultry barn.

The ALC told the facility to stop more than two years ago, but lifted the order in early 2017 when a non-farm use application to legalize the site was submitted.

That application first went to the City of Abbotsford, and this February council agreed to forward it to the ALC this February. City staff suggested that a subsequent rezoning of the property would require the operator to fix the various problems identified by government inspectors.

“That tells me they’re moving in the right direction,” Mayor Henry Braun said at the time.

But Coun. Patricia Ross, the lone councillor who opposed forwarding the project, said the existing concerns were worrying.

“My concern is that past behaviour can be an indicator of future performance,” she said.

A month earlier, in January, a Ministry of Environment inspector had ordered Lifesoils operator Randy Dahl to control the leachate coming from the site in order to avoid a fine.

But when an inspector returned to the site in May, she found little had improved, with the composting area still uncovered and not on an impermeable surface, according to a report obtained by The News.

Lifesoils Compost Site, Abbotford, B.C. (Photo Credit: The Abbotsford News)

Lifesoils owner Randy Dahl told the inspector that the company “does not intend to register or implement changes to achieve compliance with [the Organic Matter Recycling Regulation] and thus [the Environmental Management Act], until applications with the City of Abbotsford and Agricultural Land Commission have passed,” the report says.

The inspector referred the matter for an administrative penalty – essentially a fine. The company was also ordered to hire an expert to determine if run-off and/or leachate from the site is affecting, or could affect, the aquifer underneath.

In 2012, experts had rated the vulnerability of one of the aquifers in the area as “high.” The aquifer was described as highly productive, with dozens of wells at homes, businesses, industries and farms drawing water.

This week, an environment official told neighbours in the area that Lifesoils had “decided on the immediate shutdown of the composting operation.”

The Ministry would be “discussing the decommissioning process and timeline” with the operator this week, according to an email.

It’s unclear whether the shutdown will be permanent, and The News has not been able to reach the operators.

Neighbours believe the move will be permanent because of the regulatory difficulties faced by Lifesoils. But the ALC said Wednesday that the file remained open and that it was proceeding with the non-farm use application. The city had not yet received notice of any changes to the application as of Friday.

Results of Waste Data Analysis in British Columbia vs. other Provinces

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Vancity Credit Union recently published the results of a waste data analysis study it conducted in British Columbia. The results show that B.C. residents dispose of 549 kg of waste per year per resident. The total disposal rate is the second lowest per capita for a province in Canada. Nova Scotia residents generate the least amount of waste on a per capita basis.

The report, entitled State of Waste: How B.C. compares in the war on trash
looked at detailed data from municipal, provincial, and national databases. It concludes that while B.C. industries, businesses, and individuals are taking steps to curtail their production of waste, local reduction, compost and recycling targets aren’t on track and will likely be missed. The report also reveals that Delta has emerged as Metro Vancouver’s biggest producer of domestic trash, generating 465 kilograms for every single family residence in 2017, while Vancouver more than doubled North Vancouver’s production per single family residence.

Most solid waste produced in the region consists of construction debris, uneaten food and soiled paper.

The report also found:

  • B.C. produced 549 kilograms of garbage per person in 2016, which is 30 per cent less than the national average but almost 60 per cent more than a province-wide target for the year 2020.
  • B.C. diverted 40 per cent of its solid municipal waste from landfill and incineration to recycling and compost facilities, more than all other Canadian provinces except Nova Scotia, but well behind a common regional and municipal target of 80 per cent for the year 2020.
  • Spoiled and uneaten food – most of which could be diverted as compost – represents about 25 per cent of all residential garbage that is either thrown into B.C. landfills or is incinerated.
  • Half of all waste diverted in Metro Vancouver in 2016 came from the demolition, construction and land-clearing sector, with concrete the most common material diverted.

“B.C. is a leader when it comes to waste reduction and diversion, but more strategies are needed to track and improve results,” stated Morgan Beall, Vancity’s environmental sustainability portfolio manager, in a press release. “The province’s capacity to absorb waste is constantly being stretched. We all have a responsibility to eliminate waste.”

The report acknowledges that it was difficult to precisely determine the amounts of waste generated, disposed and diverted and what can ultimately be avoided in each municipality and province because reporting methods vary by jurisdiction. The report calls on governments at all levels to introduce measures that standardize and make public all waste collection, diversion and disposal data.

The author of the report, Vancity, is a values-based financial co-operative serving the needs of its more than 525,000 member-owners British Columbia. With $26.4 billion in assets plus assets under administration, Vancity is Canada’s largest community credit union. Vancity uses its assets to help improve the financial well-being of its members while at the same time helping to develop healthy communities that are socially, economically and environmentally sustainable. Vancity branches divert 88% of their waste from landfill and 49 of 59 branches are net zero waste (no waste is taken to landfill).

B.C. Proposes Changes to Organic Matter Recycling Regulation

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The British Columbia Ministry of  Environment and Climate Change Strategy (the “Ministry”)  recently introduced proposed changes to the Organic Matter Recycling Regulation (OMRR).  The Regulation itself governs the construction and operation of compost facilities, and the production, distribution, storage, sale and use of biosolids and compost. It provides clear guidance for local governments and compost and biosolids producers, on how to use organic material while protecting soil quality and drinking water sources.

The Ministry is currently conducting a comprehensive the OMMR to ensure it remains protective of human health and the environment. The Ministry recently published a 2018 Intentions Paper for review. The Intentions Paper is the result of policy development following
three previous policy intentions papers (October 2006, July 2012, and September 2016) with consultations, a follow up Summary of
Public Input and Policy Update (March 2017), and policy work completed this past year by the Ministry.

The policy intentions paper presents the Ministry’s policy intentions for proposed revisions to the OMRR. The policy intentions paper reflects details and further policy development completed since March 2017, including in topic areas that had been identified for further exploration or policy development in the Summary of Public Input and Policy Update.  The policy intentions paper is developed for the purpose of consultation.

The ministry’s proposed revisions to the OMRR are intended to address advances in science, feedback from stakeholders, policy direction, and operational issues or gaps that have been identified through implementation of the OMRR. Proposed OMRR revisions will be in keeping with the ministry’s approach to develop legislation, regulation and policies based on evidence and sound scientific knowledge and expertise.

Vancouver Compost Site

The Intentions Paper contains specific policy intentions and details that have changed since earlier consultations or are new policy proposals which were not discussed in previous intentions papers.  They are are follows:

  • Improving government authority with a shift from a notification process to a registration process (Section 1);
  • Classifying composting facility size by the amount of feedstock received (i.e., input) rather than the amount of
    compost produced (i.e., output) (Section 1);
  • Requiring that a notice of operation be given by facilities producing BGM and using more than 5 m3 of biosolids at a
    site per calendar year (Section 1.1);
  • Specifying requirements for engagement with First Nations (Section 2);
  • Enabling substitutions (Section 3);
  • Enabling fee payments for substitutions and registrations (Section 4);
  • Addition of new feedstocks for composting, including raw domestic sludge and used mushroom growing substrate
    and (Section 5);
  • Establishing timelines for composting facilities under permit, approval or operational certificate to adopt higher
    performance standards (Section 6.2);
  • Improving standards for compost quality criteria, including a new limit of 0.25 percent by wet weight for plastics
    (Section 6.3);
  • Specifying mandatory setbacks for composting operations (Section 6.4); and
  • Enabling a director to request post-application sampling for each site and occurrence of the land application of
    managed organic matter (Section 7.4).

The Ministry is encouraging comments regarding the information outlined in the 2018 Intentions Paper. The deadline for responses is November 8, 2018.  The Ministry has stated that it will consider all responses as it prepares the proposed revisions to the regulation.