Sections 6-9

Our top priorities are the safety and security of people, and the protection of the environment. Accordingly, it is our expectation that each company take a precautionary approach when reporting Contamination.

We will determine whether the event is reportable based on information provided by the company. In cases where an event was reported using the precautionary approach, and subsequent information indicates it need not have been reported, we will change the status of the event to ‘misreported’ and our records will reflect this status. The ‘misreported’ status means that the event was reported in error and no further compliance or enforcement actions will be taken for this event.

Similarly, we expect Contamination or suspected Contamination encountered will be promptly assessed, confirmed through analytical testing and reported pursuant to applicable laws.

Find the table for Contamination Scenarios and Required Actions in Appendix E (see Table 18.5).

Companies are required to report Contamination using the CER Online Event Reporting System (OERS). Companies report Contamination by submitting a Notice of Contamination (NOC).

A NOC is required when either of these two conditions are met:

1. Contamination is identified or encountered during any phase of the Facility’s lifecycle, and the presence of Contamination is confirmed through analytical sampling. Contamination that is identified or encountered must be further assessed in a prompt manner and analytical sampling must be conducted.
2. Contamination resulting from an Incident cannot be remediated within 12 weeks of the Incident being reported to the CER[1]

 

A NOC is not required for:

1. Contamination resulting from an Incident that has been appropriately remediated within 12 weeks of reporting the Incident to the CER. Appropriate remediation is typically demonstrated through confirmation that applicable Remediation Criteria are met.
2. Contamination resulting from a known Release, that does not meet the definition of an Incident, and is immediately and completely remediated upon the Release occurring. In this case, a NOC is not required; however, companies must record the Release and also the subsequent actions that demonstrate the Contamination was appropriately remediated, and provide the record to us upon request.

 

Companies must submit the NOC to us as soon as possible following the confirmation of Contamination through analytical testing. The NOC should contain the most accurate information available at the time of submission. We recognize further characterization and delineation following the NOC submission may require updates to the information initially provided in the NOC. In the case of significant updates, send an email to remediation@cer-rec.gc.ca explaining the updates.

Inspection Officer Powers

Once a company notifies the CER of Contamination, we assign a remediation event number (REM) to the event, and appoint an Environmental Analyst to act as a liaison with the company throughout the Remediation project. The Environmental Analyst is also an inspection officer, and holds all of the responsibilities and authorities in this role as set out in the Canadian Energy Regulator Act (CER Act). The authorities of an inspection officer are described in the Canadian Energy Regulator Act (CER Act) sections 103, 104, 108 and 109. The authority to issue a notice of non-compliance is stated in section 108.

If the inspection officer has reasonable grounds to believe that there is or likely to be a contravention of Part 2 to Part 5 of the Canadian Energy Regulator Act (CER Act), or additional action is needed to ensure the safety and security of persons or the protection of property and the environment, the inspection officer may, by order, do both or either of the following:

• direct a person to stop doing something
• take necessary measures to prevent or mitigate the hazard to the safety or security of persons or damage to property or the environment Canadian Energy Regulator Act (CER Act) section 109(1)

Remediation events submitted for Facilities regulated under Canada Oil and Gas Operations Act (COGOA) will be assigned to a conservation officer who holds all the powers of officers as set out in Canada Oil and Gas Operations Act (COGOA) section 54(1).

Company Submissions

The documentation we require following submission of the NOC will be specific to the site and dependent upon several factors, including but not limited to,

• the complexity of Remediation
• the risk of off-site migration
• the potential for exposure of sensitive Receptors
• contaminant characteristics
• third party interest(s) in the site

The information provided in the NOC will assist in determining whether further documentation is required for the contaminated site. Examples of different scenarios companies may encounter, and the required actions following the submission of the NOC, are included in Appendix E.

Information requested by our Environmental Analyst directly following the submission of a NOC may include the content listed below.

Contamination on Company Owned or Leased Lands

For Contamination on Company Owned or Leased Lands, a company may be required for some events to provide the content in A and B; however, for all events, a company must provide the content in A. This content consists of:

1. CCME National Classification System for Contaminated Sites: Site Classification Worksheets
2. Further details on the site conditions or contaminant characteristics through an information request in OERS.

 

If the three conditions in section 12.3 are met (i.e., a, b, c.), further submissions are not usually required beyond the submission of the CCME Site Classification Worksheets; however, annual updates for these contaminated sites are required.

If the three conditions in section 12.3 are not met, the information requested will be similar to that for the Right-of-Way below

Contamination on a Right-of-Way

For Contamination on a Right-of-Way, companies may have to submit documents listed in either or both 1 and 2 below:

1. Submit either: the response to an information request in OERS to provide further details on the site conditions or contaminant characteristics, and/or a Closure Report with a specified deadline if the responses to the screening assessment questions indicate the site is low risk. An automated request for a Closure Report will be sent by OERS immediately after companies submit a NOC in this case. Our Environmental Analyst will review the NOC, and may request further information before companies submit a Closure Report. Companies are encouraged to contact the Environmental Analyst to discuss the development of the Closure Report and the timeline for Closure Report submission.
2. Submit the CCME National Classification System for Contaminated Sites Site Classification Worksheets. Following review of these worksheets and information provided in the annual updates, the Environmental Analyst will request any of the following documents as next steps:
   1. A Remedial Action Plan (RAP) with a specified deadline. Companies are encouraged to contact our Environmental Analyst to discuss the development of a RAP and the timeline for RAP submission.
   2. A Risk Management Plan (RMP) with a specified deadline. Companies are encouraged to contact our Environmental Analyst to discuss the development of a RMP and the timeline for RMP submission.
   3. A Closure Report with a specified deadline. A Closure Report will be requested following the submission of the CCME site classification worksheets with no requirement for a RAP submission, when all of the criteria listed below are met, and responses to the questions in Appendix C do not indicate the need for a RAP:
      • contaminant exposure presents a low risk to receptors
      • there is low risk of off-site migration
      • remedial activities follow standard practices
      • the site is remediated to generic Remediation Criteria

 

Companies are encouraged to contact the Environmental Analyst to discuss the development of the Closure Report, and the timeline for Closure Report submission.

A company may become aware of its Facilities generating Company Off-Site Contamination or potential Company Off-Site Contamination through a variety of means.

If the Company’s Off-Site Contamination is resultant of plume migration from previously reported Contamination on or from All Lands, the company must submit a notice of its Company Off-Site migration as follows:

• Email: remediation@cer-rec.gc.ca.
• Subject line: “REM20XX –XXX Notice of Off-Site Migration”

Companies must submit a notice of Company Off-Site Contamination migration whether investigations confirm off-site Contamination, or investigations are inconclusive.

If a company identifies or encounters Company Off-Site Contamination not associated with previously reported Contamination, it must report the Contamination to the CER through a submission of a NOC. Any identification of Company Off-Site Contamination or potential Company Off-Site Contamination must be further assessed. This NOC must be submitted whether assessment confirms Company Off-Site Contamination or is inconclusive.

A company may become aware of their Facilities generating Company Off-Site Contamination, or potential Company Off-Site Contamination that is not associated with reported Contamination, through any number of sources. These may include, but are not limited to:

• the company’s monitoring program
• landowner or other potentially affected persons
• another company performing Work
• an application to the CER from another company

After submitting a notice of off-site migration, or a new NOC reporting Company’s Off-Site Contamination, the Company’s Off-site Contamination must be reported to other regulatory authorities as required by applicable laws.

Companies must comply with all other applicable laws regarding Release reporting for Contamination, including reporting to the appropriate regulators, authorities, landowners, rights holders or stakeholders, and comply with any mitigation or Remediation required pursuant to such applicable laws or authorities.

The CER requires companies to establish a systematic and proactive approach to developing and implementing project-specific engagement activities. The engagement program must apply throughout the lifecycle of a Facility from Construction through to abandonment.

We require companies to consider whether engagement is required for all sites with Contamination. Depending on the extent of Contamination and on the scope of Remediation, engagement could mean carrying out extensive engagement activities within a community, or it could mean a single activity such as notifying a landowner. Companies must be able to demonstrate the extent of engagement carried out for each site with Contamination is sufficient on a case-by-case basis. We encourage transparency and engagement with all potentially affected persons and communities. In all situations, companies should strive for open communication between all agencies, organizations and persons involved. We require that, at a minimum:

1. All potentially affected persons and communities are notified of the Contamination contemporaneously with reporting to us. If confirmatory sampling of Contamination is required, provided there is no potential risk to human health or safety, companies may wait to notify potentially affected persons, or communities or stakeholders until the sampling results are obtained.
2. All potentially affected persons and communities are provided with:
   1. A summary of the extent of Contamination and the potential for Adverse Effects related to the environment, including the health or safety of persons.
   2. A copy of the Remedial Action Plan (RAP), and/or Risk Management Plan (RMP), and executive summaries of these plans where requested. If a RAP is not required for remedial activities at the site, all potentially affected persons should be notified of the plan for Remediation, including the types of remedial activities proposed, and the timelines prior to being provided with the Closure Report.
   3. A copy of the Closure Report.
   4. Have all concerns heard, considered, and addressed, as appropriate, prior to submission of the Closure Report.
3. When Contamination occurs on privately owned land, or is suspected to have migrated onto privately owned land, in addition to being provided with the information in 2.a, 2.b and 2.c. and implementing the requirement of 2.d, the landowner must:
   1. Be adequately engaged, which includes opportunities to participate in the development and implementation of the RAP and/or RMP and opportunities to participate in the development and implementation of the reclamation plan, and,
4. When Contamination occurs on reserve lands, Metis settlement lands, or is suspected to have migrated onto these lands, in addition to being provided with the information in 2.a, 2.b and 2.c and implementing the requirement of 2.d, Indigenous Peoples and communities must:
   1. Be adequately engaged, which includes opportunities to participate in the development and implementation of the RAP and/or RMP, and opportunities to participate in the development and implementation of the Reclamation Plan.

 

Section 3 (step 1) of the Early Engagement Guide provides assistance in identifying those persons that may be affected by contamination or activities within the scope of the Work. Potentially affected persons include:

• Indigenous Peoples
• Persons with an Interest in Lands Affected by the Project
• Persons Potentially Affected by the Project
• Government Authorities

For further guidance on the scope and extent of engagement we require, companies should refer to the following documents that are available on the CER website:

CER Early Engagement Guide (Guide L of the CER Filing Manual)

CER Filing Manual, Chapter 3.4 (Consultation)

The CER Early Engagement Guide provides guidance for our expectations for engagement prior to an Application; however, the principles and goals in the CER Early Engagement Guide apply throughout the project lifecycle.

The CER encourages open and respectful discussion between companies and people that are affected by CERregulated Facilities. Through our alternative dispute resolution (ADR) services, we can help companies and potentially affected persons work through disputes and find practical solutions to issues of disagreement concerning remedial activities. ADR is a voluntary, confidential, and interest-based approach for resolving disputes. ADR can happen in parallel with other regulatory processes.

ADR can be requested at any time. Experience shows that successful outcomes are more likely to be achieved earlier in the process that ADR services are accessed. We can use ADR specialists who have accredited certification in negotiation, facilitation and mediation to assist in evaluating options for resolving issues. Our ADR specialists work with potentially affected persons and companies to design and plan for a process to assist in reaching a mutually satisfactory outcome on unresolved issues.

Some of the potential benefits of ADR are:

• it is flexible and supports respectful discussions
• it can lead to mutually acceptable outcomes that are practical and meet specific needs
• settlements are decided by the participants and are not imposed by the CER

Companies and potentially affected persons and communities are encouraged to use our ADR services. If parties are unable to resolve their dispute through their own negotiation efforts, either party may contact us:

Alternative Dispute Resolution
Canada Energy Regulator
210-517 10 Ave SW
Calgary AB  T2R 0A8
Email: ADR-RED@cer-rec.gc.ca

Companies may need to involve federal, provincial, territorial or municipal governments in the Work related to contaminated sites at various points throughout the lifecycle depending on local, provincial or territorial laws and policies. Companies must follow all laws; federal, provincial and territorial that apply to them.

Notification or reporting to other local, provincial, territorial or federal regulators must be considered when:

1. Contamination has migrated off-site of All Lands.
2. A potential for migration of Contamination off-site of All Lands exists.
3. Third Party Contamination or potential Third Party Contamination is identified.

 

Other regulators and authorities must be notified in accordance with applicable laws.

If companies encounter Third Party Contamination, they must take the following actions:

1. Report Contamination

1. Report to the CER

   Submit a NOC through OERS that clearly identifies the Contamination as Third Party Contamination.

   Use the description field under ‘Initial Report’ in the NOC to identify that Third Party Contamination is being reported. An example of a description of a Third Party Contamination report in OERS is shown in Figure 2 below.

   

   Figure 2: Description of Third Party Contamination

   Further reporting requirements to the CER will be determined on a site by site basis. This may include submitting a professional consultant’s report which provides evidence and documents the rationale that proves the Contamination is Third Party Contamination, and not attributable to the company’s Facilities.

2. Notify the landowner

   The landowner must be notified of the Third Party Contamination or potential Third Party Contamination. The landowner must also be provided with all the information listed at section 7, item 2. If soil is removed and replaced with comparable soil, the source of the soil and soil quality should be discussed with the landowner.

3. Notify the responsible party or parties

   The party or parties responsible for the Third Party Contamination must be notified of the contamination, if the parties are known. Any correspondence to the party or parties responsible should also be sent to the CER and any other appropriate regulatory authorities.

4. Report to other regulatory authorities

   The Contamination must be reported to other regulatory authorities as required by applicable laws. Companies must comply with all other applicable laws regarding Release reporting for Contamination, including reporting to the appropriate regulators, authorities, landowners, rights holders or stakeholders, and comply with any mitigation or remediation required pursuant to such applicable laws or authorities.

 

2. Manage Contamination

Upon identifying or encountering Third Party Contamination, all impacts that may be caused by disturbing the Contamination during project activities must be adequately investigated, and a plan established to mitigate these impacts. This plan may be requested by the CER Environmental Analyst.

These required actions include, but are not limited to:

1. Take all precautions necessary to ensure worker safety and safety of any other persons.
2. Track and manage On-site Contamination:
   1. Contaminated soil and Contaminated liquids, which are disturbed or moved during the Work cannot be placed back into the environment.
   2. Contaminated soils and/or liquids must be transported off-site and disposed of pursuant to applicable laws, unless otherwise specifically exempted from such requirements pursuant to permits issued by regulatory authorities.
   3. Uncontaminated soil must be confirmed (with analytical data) to meet regulatory Remediation Criteria before being used to replace any contaminated material removed from the site. All reasonable efforts should be made to source soil of a quality which meets the needs of the landowners to maintain or improve equivalent land capability.

    

3. Implement potential mitigation measures to prevent the project activities from:
   1. Increasing the migration potential of any On-site Contamination.
   2. Providing a conduit for Contamination migration.
   3. Allowing Contamination in soil or groundwater to create further impacts to lands, water or Receptors, including but not limited to water wells.

    

4. We may require further remedial actions be taken to protect the environment, including human health and safety, on a case-by-case basis.

See Bulletin 1 for the Third Party Contamination Checklist that is to be submitted as part of the reporting process for a Third Party Contamination remediation event.