This article appeared in The Lawyers Weekly (June, 1998).

Leak Proof

Gasoline handling code revisions propose
new spill, leak and clean-up requirements

Barry N. Spiegel is a lawyer at the Toronto office of the environmental law firm of Willms & Shier, where he writes on environmental and municipal law and policy. He is also Webmaster of http://www.WillmsShier.com. He welcomes comments at

Proposed changes to the Gasoline Handling Code (GHC) will tighten up clean-up and reporting obligations of owners and operators for spills, leaks and tank-pulls. The GHC amendments are intended to make GHC spill and clean-up provisions consistent with the Environmental Protection Act (EPA). The amendments, and a new clean-up guideline for operating facilities, will likely take effect later this year.

Some of the changes will be welcomed by service station owners and operators. These include:

• requirements that only "affected" parts of leaking systems be emptied;
• tying spill reporting to the EPA, which will soon exempt small spills; and
• dropping requirements to file clean-up plans with the Ministry of Environment (MOE) when facilities are closed.

Other changes will clarify or toughen existing GHC provisions. They include:

• new requirements for indoor leaks, discharges and contamination;
• a requirement to report all discovered contamination, regardless of cause or age;
• clarification that all leaks must be reported to Fuels Safety Division, no matter what the size; and
• clarification that discharges caused by human error are "spills," not "leaks" and only require reporting when likely to cause an adverse effect.

The proposed amendments to the GHC, and a new Guideline for the Assessment and Management of Petroleum Contamination at Operating Petroleum Handling Facilities in Ontario (December 1997), were posted for public comment on Ontario?? electronic Environmental Registry on January 13, 1998.

The proposals were announced by Ontario?? new, privatized regulatory authority, the Technical Standards and Safety Authority (TSSA). The non-profit, self-funded TSSA took over the staff, premises and authority for administering the Gasoline Handling Act from the government last May. About 95% of the staff of the former Fuels Safety Branch moved from their government jobs to perform similar functions for the Fuels Safety Division (FSD) of the new private-sector agency.

The TSSA?? Vice President of FSD now functions as the GHC "Director" for the purposes of administration, making orders and receiving reports.

According to FSD, the amendments and the new guideline will work together to create a more coherent framework requiring owners and operators to detect, confirm, report and clean-up spilled or leaked product, and act to prevent or clean up contamination of soil and water. The proposals should also eliminate inconsistencies with the MOE?? new clean-up guideline, entitled Guideline for Use at Contaminated Sites in Ontario (February 1997).

Under the GHC, a "leak" is an escape of product caused by a defect or failure of tanks or equipment. All leaks must be reported, regardless of amount. Under the amendments, "spills" will be redefined, and treated differently.

The amendments will bring GHC spill reporting provisions into line with the EPA, by adopting the EPA definition of "spill". The result may be less stringent currently required by the GHC. The EPA requires reporting only of spills that are likely to cause an "adverse effect" on health or the environment. Where no adverse effect is caused, or is likely, the owner or operator will not be required to report the spill to the MOE. Spills not caused by defective tanks or equipment are not considered to be "leaks," and will not need to be reported to FSD (unless there is a fire or explosion).

For years, companies using chemicals and other pollutants, have struggled to find a consistent way to comply with the EPA?? spill reporting provisions. Every potential spill requires an owner or operator to make a judgement call - is it likely to cause an "adverse effect?" That headache may soon be eased. In November Ontario?? MOE released its proposals for regulatory reform. MOE is now preparing amendments to the EPA Spills Regulation to exempt insignificant discharges from mandatory spill reporting. The regulation will specify a minimum amount of gasoline or associated product deemed to be a "spill" - anything below the minimum will not have to be reported - anything exceeding it will have to be reported to the MOE. This will make it simpler for owners and operators to establish spill reporting policies and train staff.

Section 12 (environmental remediation ) of the GHC will be repealed, altering the clean-up requirements for owners and operators who discover leaks or contamination. They will have to immediately: report; shut down, empty and repair affected parts of systems; and deal with actual or potential adverse effects.

Since only the "affected parts" of a leaking system will have to be emptied, where only piping leaks, tanks will not have to be emptied.

A definition of "contamination" will be added to the GHC. Contamination will mean gasoline or associated products, resulting directly or indirectly from human activities, exceeding "levels acceptable to the Director." FSD says this refers to levels exceeding those set out in the MOE Guideline. This definition is too vague. Owners and operators who are obligated to clean up are entitled to clear and specific standards.

The determination of clean-up criteria is controversial, since both MOE and FSD legislation is directed at preventing adverse effects. The MOE criteria are ??onservative?? meaning that MOE scientists are satisfied that adverse effects will not occur at these levels. MOE and FSD appear reluctant to put the criteria into a regulation, at least partially to avoid legal challenges asserting that the criteria are more stringent than necessary to avoid adverse effects.

A new requirement to report and take action where "contamination is discovered" is intended to end the debate over reporting "previously undiscovered contamination of any age or origin.?? Contamination uncovered during installation of improvements or system maintenance must be reported to FSD, even if it originated from tanks removed long ago by former owners or operators. Even contamination migrating from neighbouring sites would be included. FSD notification is made by calling the MOE Spills Action Centre (SAC - 1-800-268-6060). Since the SAC also receives spill reports for the MOE, owners and operators should avoid confusion by clearly identifying who should receive the report and what it relates to (i.e. spill report to the MOE versus report of a leak or contamination directed to the FSD).

New site clean-up rules require owners and operators to assess contamination, and introduce an option to ??anage??contamination over a long-term. Currently, for operating facilities, the GHC does not require extensive soil clean-up unless the Director requests a report and action plan from a hydrogeologist or engineer.

Under the amended GHC, owners and operators will have to either:

• clean up the site to meet the criteria established by the Director (discussed above); or
• negotiate and carry out measures "acceptable to the Director" or
• implement a "contamination management plan" (CMP). A CMP can only be used where no adverse effect is likely and contamination is not high enough for FSD to require immediate action. A CMP provides for long-term monitoring , and reporting requirements if contamination increases or migrates.

When above or underground tanks are permanently removed, expert reports and recommendations will no longer be filed with the MOE. However, owners and operators will have to have a site assessment conducted by a qualified person. Where an adverse effect is likely, the MOE will have to be notified, as required by the EPA.

Written comments on the proposed amendment and the guideline can be submitted to Raphael Sumabat at the TSSA Fuels Safety Program. Copies of the draft GHC clean-up guideline (including the proposed amendments to the GHC) are available from the Fuels Safety Division of the TSSA.

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