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EHS Canada // EHS Regulatory Update Canada

Date // 20th July 2017

EHS Regulatory Update Canada

Canada is a vast country with ten provinces and three territories resulting in a myriad of environmental health and safety (EHS) regulations and practices that frequently change. Being in  touch with provincial agencies or having local experts on the ground assists in complying with "due diligence" or other sections of EHS regulations, including those which change due to updates in guidelines rather than in legislative change .

Since the majority of Canadians live within 100 km (6o miles) of our shared border with the United States of America, who is Canada's largest trading partner, companies operating in Canada design health and safety programs to conform to U.S OSHA requirements to facilitate cross border trade and promote business. However other international standards and provincial regulations also need to be included/considered. Flexibility is also required since Canada's OH&S laws vary between provinces and don't always align with either OSHA requirements, international standards or even other provincial laws. It is important to recognize these differences when adapting or developing a health and safety program in a Canadian plant. Most jurisdictions in Canada do not adopt a prescriptive approach for technical issues (such as machine guarding or electrical lock outs, but instead rely on performance outcomes that are often grounded in guidelines and standards, which are not always referenced directly in regulations.

Similarly, Canada has developed its own environmental regulations at the federal, provincial and municipal level hat must be considered when ascertaining potential or actual environmental risks, determining environmental liability, completing property transactions, redeveloping brownfields, addressing current or legacy issues associated with ongoing business operations.

Please find below a summary of some EHS regulatory considerations and some recent changes for managing business operations in Canada that have been selected based upon client requests received in the last calendar year.

OH&S topics discussed include a general health and safety program, worker training programs and ongoing management systems, assessing regulatory compliance of ongoing operations.

Environmental topics discussed include phased environmental site assessments, operational permits and approvals and risk assessment.

The specific requirements for health and safety programs for Canadian facilities vary from province to province but generally include the following key components:

  • An OH&S policy and documented program to implement the firm-specific hazard management programs. In most cases it is necessary for the employer to review/update both the policy and the program annually too be compliant (requiring updated signatures, confirming management review at least annually).
  • Joint Employer-Employee OH&S committee(s), with provinces-specific requirements for the management to consult with and inform the committee on OH&S issues, and to respond in a timely manner to committee recommendations. In some jurisdictions, worker committee members must receive accredited external training to become certified, while in others, the employer must allow members to get external training on specific hazards.
  • Accident reporting to provincial compensation boards within rigid timelines - typically no more than 3 days.

As "right to know" requirements for the chemicals are aligning with international guidelines, Canadian "WHMIS" standards are being  transitioned to the Globally Harmonized System (GHS), which triggers new training for workers to understand GHS-compliant safety data sheets. This transition is underway across the country and is targeted to be completed by the end of 2018 for most provinces.

Some jurisdictions have enacted Workplace Violence and Harassment regulations, requiring that policies and programs are put in place within workplaces to ensure that workplace violence and harassment issues can be reported, investigated and addressed appropriately in the workplace.

Many provincial regulations for machine guarding infer or specify the use of the Canadian Standards Association (CSA) standard CSAZ432. A new edition was recently released which includes updated protocols for residual risks. Employers should be updating protocols for internal reviews to reflect these best practices.

Among other Canadian standards that have been updated recently is that for Confines Spaces (CAN/CSAZ1006). Although this standard is not mandated explicitly in law in most jurisdictions, the planning, training and management procedures meet or exceed requirements that are specified and can assist where performance-driven legal requirements make protocols unclear fr specific confined spaces.

Industrial hygiene programs remain vaguely defined in most provincial regulations, but exposure limits are often updated annually to reflect recent changes too guidelines such as the ACGIH TLV's. Variations in how and when exposure limits are updated remains a challenge for firms operating in multiple Canadian jurisdictions.

Although many worker training programs can be developed and delivered in-house to satisfy regulatory requirements, some jurisdictions specify the content of training required for compliance. For example, in the province of Ontario, mandatory OH&S awareness training for workers must cover a specific list of topics. "Employees" undergo basic training, while "Supervisors" undergo this same training along with learning additional requirements for overseeing workers under their direct supervision. Regardless, documented attendance and satisfactory completion (i.e. passing of course exams) of OH&S awareness training is required in Ontario, in order for workers to be deemed "competent" in their designated roles.

A recent trend in OH&S training is for provinces to accredit training program content and trainers for more rigorous programs. Examples of this include training for "certified" members of workplace committees and training for workers who use fall protection (fall arrest, travel restraint). This means that previous training, training delivered by non-accredited trainers, or programs using non-accredited training materials my not be acceptable for some programs in some provinces. This trend appears to be the new normal for Ontario, and may have implications for the quality and credentials of training elsewhere in Canada.

Like in the US and UK, OH&S management systems have been circulated in Canada. CSA Z1000-2014 edition describes the program, which is similar to the basic features specified by ANSI and BSI. As with other management systems for OH&S, risks are to be documented and assessed, with a view to achieving continuing improvement in harm reduction for employees.

Adopting an OH&S management system is not currently required by regulation in any province. However, the province of Ontario will soon update its OH&S Act to include provisions where the regulator can accredit OH&S management systems. It is anticipated that this will be used as an incentive for employers that use such techniques to proactively manage risks and achieve lower accident/illness rates and costs.

While third-party compliance audits are not required by law in most provinces, existing workers' compensation incentives (and penalties) can be tied to inspections performed by enforcement agencies in some jurisdictions (for example a provincial Ministry of Labour work site inspection). Since most inspections of this nature are triggered by a poor accident record or other concern, proactive compliance audits are a useful tool to document current practices and assist with ongoing operations since they:

  • Allow firms/facilities to pass future inspections;
  • Decrease worker compensation claims potential arising from a particular facility or operation; and,
  • Lowe the premiums associated with workers compensation claims for a given facility or operational practice.

Similar to locations outside Canada, third-party audits that proactively look for gaps in OH&S compliance can also be beneficial in the event of random government inspections or inquires triggered by fatalities or serious injuries. "Due diligence" as a legal defense strategy when prosecutions arise requires a paper trail documenting that risks are actively managed. Audits can test and build assurance that programs address the legal requirements of a firm located in Canada. Such audits are most useful if tailored to address the specific regulations in the province where the business is located.

Phased Environmental site assessment (ESA) programs have three regulatory considerations:

  1. Puropse
    1. For due diligence purposes, CSA standards Z768-01 (Phase I ESAs) and Z769-00 (Phase II ESAs) generally apply
    2. If supporting a site closure application then provincial reporting requirements must also be met
  2. Property Location
    1. On private property, provincial environmental regulations/guidelines typically apply. Examples include:
      • Alberta Tier 1 and 2 Soil and Groundwater Remediation Guidelines
      • Atlantic Risk Based Corrective Action
      • British Columbia Contaminated Sites Regulation
      • Ontario Regulation 153/04
    2. On federal lands, such as ports, airports and military bases, federal standards apply, including:
      • Canadian Council of the Ministers of Environment (CCME) soil and groundwater standards; and,
      • Federal Contaminated Site Action Plan (FCSAP)
  3. Final use of Property
    1. Provincial, territorial and federal regulations and/or guidelines typically include or reference generic criteria for soil and groundwater or allow development of site-specific standards based on:
      • Future land use (i.e. residential/parkland vs commercial/industrial)
      • Potential groundwater use (i.e. potable vs non-potable)

For due diligence and transactional investigations conducted in Canada, CSA Standards are used over the American Society for Testing and Materials (ASTM) standards as they:

  • Reference Canadian environmental information sources;
  • Are in general, less expensive to implement than ASTM standards; and
  • Tie into both federal and provincial practices. For example a "historically recognized condition (HREC)", a "controlled recognized environmental condition" (CREC)" or a "de minimis condition" are not defined under the CSA Standards noted abouve nor are they generally recognized in Canada.

In Canada, air and noise emissions, groundwater takings, water discharges, water disposal, storage tank systems and chemical storage/handling practices at industrial and other facilities must comply with federal, provincial and/or municipal regulations. While the requirements vary across the jurisdictions, emissions and discharges of contaminants are generally subject to permits or environmental approvals. Fuel storage systems must be registered with the appropriate authority. In addition, many jurisdictions have industry-specific regulations regarding emissions control and/pr reporting. Many facilities are also subject to on-going monitoring, sampling and reporting to document regulatory compliance.

Under the Canadian Environmental Protection Act (CEPA) reporting  of certain large-scale air emissions is completed annually under the National Pollutant Release Inventory (NPRI), which is a publicly accessible database. Greenhouse gases, carbon emissions and ozone-depleting substances are all subject to broad federal regulations, but regulations regarding the quantities of contaminants released, emissions control requirements, and additional reporting requirements may also exist at the prvincial level. Recently the federal government established a national carbon pricing poilicy which sets a minimum price on greenhouse gas emissions throughout Canada. Provinces are developing different approaches to comply with this, including taxation, cap and trade, and emission reduction legislation.

Wastewater and waste disposal is commonly regulated at the provincial level, but municipalities will establish by-laws to ensure compliance with respect to use of their systems. These typically include restrictions and permits regarding discharge to sewers, and reduce/re-use/recycle requirements for non-hazardous waste. Hazardous wastes must be registered, transported by a licensed carrier, and disposed of at a licensed facility. Transportation of hazardous materials across provincial borders is regulated federally.

Facilities that are subject to environmental regulations should undertake regular environmental compliance audits to identify whether all appropriate permits and approval are in place, and to verify compliance with the permit requirements, plus other applicable regulations and by-laws. Navigation complex layers of environmental requirements can be a challenge, especially for large manufacturing facilities with operations in multiple provinces. CSA Z773-03 provides a framework for conducting environmental audits, including assessing risks, and identifying corrective/preventive action or opportunities for improvement.

With Canadian real estate prices in areas like Toronto and Vancouver reaching new highs, many brownfield properties remain valuable, if underutilized, land parcels. However, significant remediation costs and/or technical challenges are often associated with widespread contamination (e.g. poor quality historical fill materials), deep soil and/or groundwater impacts, or contaminated in bedrock aquifers, and these factors can hinder successful redevelopment of brownfield properties.

Risk assessment is a tool that can be used when it is not financially or technically feasible or practicable to remediate a contaminated property to generic regulatory standards. Generic regulatory standards must, by their very nature, be suitable for application at a wide range of properties and consequently the underlying assumptions associated with these standards may represent excessively conservative protection for human health or ecological receptors that may  be exposed to a contaminant at a particular property. Risk assessment permits an evaluation of risks and hazards to potential receptors that considers the site-specific characteristics of the property.

Because it is an evaluation of potential human health and ecological risks and hazards relater to environmental contaminants, a risk assessment relies upon a comprehensive characterization of the environmental condition of the property. Thus, the success of a risk assessment is contingent on well-executed Phase I and Phase II environmental site assessment activity.

The risk assessment process itself comprises four steps: problem formulation, exposure assessment, toxicity assessment, and risk characterization and is typically based on a reasonable estimate of the maximum concentration of a contaminant to which a receptor could potentially be exposed. If the risk assessment concludes that unacceptable risks or hazards may manifest, the risk assessment can determine appropriate remedial criteria (property-specific standards) that, if met, would be protective of human health and ecological receptors, or it can incorporate engineering or administrative controls ("risk management measures" such as physical barriers to contaminated materials, sub-slab venting systems, prohibitions on constructing certain types of buildings, etc.) to block or mitigate one or more exposure pathways to site contaminants.

The use of risk management measures is especially attractive for development projects, where the implementation of engineering and other controls can be incorporated into planned construction works.

There are various regulations governing risk assessment throughout Canada. Environmental regulation is a provincial/territorial responsibility, and consequently risk assessment practices and requirements do vary across the country. In addition, the Federal Contaminated Sites Action Plan outlines a process used to evaluate risks and hazards at federally owned and/or operated sites regardless of the province or territory in which they are located. In some areas of the country, in the absence of their own regulations, many provinces rely wholly or partially on the federal guidelines for the conduct of risk assessments.

The Atlantic Canada provinces (Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland and Labrador) use a Risk-Based Corrective Action (RBCA) approach for petroleum sites, which is overseen by a multi-stakeholder group comprising provincial regulators, industry stakeholders, and technical experts. The RBCA approach allows clean-p goals to include reducing risks to acceptable levels, whereas previous clean-up targets includes achieving low, background-level concentrations.

Perhaps the most prescriptive and detailed of all the provinces is the risk assessment process in Ontario that is associated with Ontario Regulation 153/04 (Records of Site Condition - Part XV.1 of the Act), which outlines very specific requirements for the site characterization efforts, remediation verification, and risk assessment as well as requirements relating to individuals permitted to oversee and accept overall responsibility for the completion of such work programs.

The Ontario regulation also provided for the completion of a "limited scope" Risk Assessment, known as Modifies  Generic Risk Assessment (MGRA, and sometimes referenced as a "Tier 2 Risk Assessment"). The MGRA approach relies upon a standard model that permits a limited number of the parameters within the model to be modified to reflect site-specific conditions, and that limits the Risk Management Measures that may be incorporated into the Risk Assessment to a number of predefined options.

While the MGRA approach does not permit the flexibility associated with a more "traditional" Risk Assessment (often referenced in Ontario as a "Tier 3 Risk Assessment"), the approach does allow regulatory acceptance of the Risk Assessment to be completed in a much shorter time period, with eight to ten months being typical (compared to an overall time period of two years that is more typical of a Tier 3 Risk Assessment). In keeping with their goal of encouraging beneficial reuse of brownfield properties, the Ontario Ministry of the Environment and Climate Change (MOECC) recently released an update of this model on November 1, 2016 to permit the model to be employed at a much greater variety and number of brownfield properties.

If you think that your site may be heading towards risk assessment, it is beneficial to speak with a risk assessor early on to ensure that you have the required information to proceed. Significant delays and costly changes to the risk assessment can be avoided by speaking with your risk assessor to ensure the absence of data gaps. It is crucial to adequately characterize the site, and ensure that the completed sampling programs have addressed all exposure pathways.

 

References:

  1. Health Canada, Part I: Guidance on Human Health Preliminary Quantitive Risk Assessment (PQRA), Version 2.0. Cat.:H128-1/11-632E-PDF (2010, Revised 2012)
  2. Atlantic RBCA; Atlantic PIRI Mandate. Atlantic Risk Based Corrective Action;[2017 Februart 9]
  3. Ministry of the Environment and Climate Change: Records of Site Condition (Ontario Regulation 153/04) - Part XV.1 of the Act; Environmental Protection Act, R.S.O. 1990, c.E.19

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