Canada: Environment @ Gowlings – April 2006

Edited by Katherine van Rensburg

Federal News

• Base Metals Smelters and Refineries

• Proposed Amendments to the Sulphur in Diesel Fuel Regulations

• Proposed Amendments to the Metal Mining Effluent Regulations

• Residential Indoor Air Quality Guideline for Formaldehyde

• Proposed changes to the Fuel Oil Code

• Drinking Water Quality

• Mow Down Pollution

Québec:

• Sustainable Development Act In Force

• Defence of Officially Induced Error Recognized by Supreme Court of Canada

The Minister of the Environment requires, under section 56(1) of CEPA, 1999, that pollution prevention plans be prepared by October 29, 2006 regarding specific toxic substances, in order to prevent and control the emission of sulphur dioxide and particulate matter containing metals released from cooper smelters, refineries, and zinc plants. The Notice applies to owners and operators of listed facilities, and to their successors and assigns.

The goal of the pollution prevention program is to apply best available techniques of pollution prevention and control to avoid or minimize the creation of waste and pollution, and to reduce overall environmental and human health risk. Plans must consider development and implementation of a Community Air Quality Protection Program, and application of the Environmental Code of Practice for Base Metals Smelters and Refineries, which is now available at http://www.ec.gc.ca/CEPARegistry/documents/code/smelters/toc.cfm.
Plans must be implemented by December 31, 2015.

It should also be noted that the Ministers of the Environment and Health intend to release regulations for base metals smelters and refineries and for zinc plants, effective 2015.

Proposed Amendments to the Sulphur in Diesel Fuel Regulations

Amendments have been proposed to the Sulphur in Diesel Fuel Regulations (SOR/2002-254) to align Canadian regulations with regulations under the jurisdiction of the U.S. Environmental Protection Agency ("U.S. EPA"). The goal of the regulations is to limit maximum sulphur levels in diesel in order to ensure that sulphur content does not impede the operation of advanced emissions control technologies on new vehicles and engines. Under both regimes, the permissible sulphur content in on-road diesel fuel will fall to 15 mg/kg from current levels of 500 mg/kg, and implementation dates are staggered to permit the sale of remaining stocks of higher-sulphur diesel following application of the limit to diesel production and imports.

The proposed changes respond to U.S. EPA amendments that will allow vendors 45 additional days to sell old stocks of diesel fuel, and during this period will permit a slightly higher limit of 22 mg/kg to account for contamination by small amounts of high sulphur content diesel fuel. Under the amended regulations production and imports would have to meet the 15 mg/kg limits by June 1, 2006, and vendors by October 15, 2006. Between September 1 and Oct. 15, 2006, vendors would be permitted limits of 22 mg/kg rather than 15 mg/ kg. Comments may be submitted to Bruce McEwen of the Oil, Gas, and Energy Division, Clean Air Directorate of Environment Canada.

For a copy of the proposed regulation see
http://canadagazette.gc.ca/partI/2006/20060401/pdf/g1-14013.pdf .

Proposed Amendments to the Metal Mining Effluent Regulations

Changes are proposed to the Metal Mining Effluent Regulations ("MMER") under the Fisheries Act, to clarify the regulatory text, ensure consistency with the Environmental Emergency Regulations under CEPA, 1999 and the recent Regulations Amending the Pulp and Paper Effluent Regulations. As well, new provisions are proposed to require habitat compensation plans for any water bodies to be added to Schedule 2 of the MMER as tailing impound areas.

For further information on the proposed regulations see
http://canadagazette.gc.ca/partI/2006/20060408/html/regle2-e.html .

Residential Indoor Air Quality Guideline for Formaldehyde

The Minister of the Environment has issued a new residential indoor air quality guideline for formaldehyde, setting exposure values at 123 micrograms per cubic metre over 1 hour or 50 ug/m 3 over 8 hours (100 ppb and 40 ppb respectively). The guidelines are intended to be protective of human health impacts and prevent respiratory and allergic effects, following reviews by the World Health Organization and Health Canada.

Further details are available at
http://canadagazette.gc.ca/partII/2006/20060419/pdf/g2-14008.pdf .

On March 31, Premier Dalton McGuinty announced a new plan to make it easier for small renewable energy producers to sell their electricity to the grid.

Under the Standard Offer Program, the province will set a fixed price of 11 cents per kilowatt-hour for power produced by eligible wind, biomass or hydro projects. The price for solar power will be 42 cents per kilowatt-hour. The goal is to add up to 1,000 megawatts of renewable power to the province's energy supply over the next 10 years.

For more information on this program, please see:
http://www.energy.gov.on.ca/index.cfm?fuseaction=english.news&&body=yes&news_id=124.

Drinking Water Quality

Ontario's Chief Drinking Water Inspector delivered his first annual report in April. The inspector's report confirmed that 99.74% of municipal residential drinking water systems tested in 2004-2005 met Ontario's drinking water standards, and concluded that Ontario's water supply was both safe and of "very high quality".

Further details are available at
http://www.ene.gov.on.ca/envision/techdocs/5516e.pdf

The Ministry of the Environment ("MOE") is encouraging the replacement of old, high-emissions gas lawnmowers with cleaner equipment (push reel, four-stroke or electric) with a rebate of up to $100. The "Mow Down Pollution" program, run by the Clean Air Foundation and sponsored by the MOE, collected nearly 5,000 lawnmowers in 2005 and aims to retire 6,000 in 2006. Running an old gas-powered mower for one hour can produce the same amount of air pollution as a new car driven 550 km.

QUÉBEC

Sustainable Development Act In Force

Following extensive consultation on Québec's Sustainable Development Plan, the province's Sustainable Development Act came into force on April 19, 2006. The statute sets up a management and accountability framework to ensure that development in Québec meets the needs of the present without compromising the ability of future generations to meet their own needs. Québec's regime shares some similarity to the existing federal regime, creating the position of a Sustainable Development Commissioner, and requiring the provincial government to develop a Sustainable Development Strategy ("SDS") by April 19, 2007.

Québec's SDS must set out key issues and objectives, and be followed by the creation of a list of sustainable development indicators within a year of the adoption of the SDS. Government action must now be framed according to 16 guiding principles, which include precaution, polluter pays, and internalization of costs together with economic efficiency and social equity. Periodic reviews will be carried out using these indicators, and the SDS as a whole must be reviewed at least every five years. Progress towards implementation of the Québec SDS will be monitored and reported upon by the Commissioner of Sustainable Development, who will act under the authority of the Auditor General. Reports will then be tabled by the Premier before the National Assembly.

Similarly, each provincial department, agency and enterprise will be required to identify SD objectives following a review of statutes, regulations, policies and programs. Progress toward the achievement of chosen objectives is to be reported in a special section of the Annual Report.

The statute also establishes a Green Fund to finance SD activities, and adds a significant new right to the Québec Charter of Human Rights and Freedoms, as follows:

"46.1 Every person has a right to live in a healthy environment in which biodiversity is preserved, to the extent and according to the standards provided by law."

Violation of the new environmental right can give rise to an action for an injunction, an action for damages for the purpose of remediation, and even to punitive damages.

For the full text of an article on the Sustainable Development Act prepared by Paul Granda and Anne-Frédérique Bourret, please see: http://www.mondaq.com/article.asp?articleid=39852

The Supreme Court of Canada recently released a decision confirming that the defence of officially induced error is available as a defence to regulatory charges. The respondents were both charged with regulatory offences under the Quebec Highway Safety Code . In Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc., 2006 SCC 12, one of the respondents, a Quebec corporation, was charged with operating a motor vehicle without having paid the proper registration fees. One of the defences that the company raised was the defence of officially induced error, alleging that it was told by an employee of the Société de l'assurance automobile du Québec ("SAAQ") that it was required to pay registration fees for a 15-month period and that a renewal notice would be sent to it before that period expired. The SAAQ sent a notice out but the company never received it.

The Supreme Court has long recognized and affirmed the principle that ignorance of the law is no excuse in the context of criminal law, including regulatory offences. However, it has been accepted that a limited exception to this rule exists where the accused makes an error in law due to the error of an authorized representative of the state. Until this case, the Supreme Court had never clearly accepted the defence of officially induced error, although many lower courts had recognized it to be legitimate.

The Supreme Court has confirmed that officially induced error will be available as a defence where the defendant can establish:

1. That an error of law or of mixed law and fact was made;
2. That the person who committed the act considered the legal consequences of his or her actions;
3. That the advice obtained came from an appropriate official;
4. That the advice was reasonable;
5. That the advice was erroneous; and
6. That the person relied on the advice in committing the act.

If these six elements are met, an accused will be entitled to a stay of proceedings. Other factors that the court will consider include "the efforts made by the accused to obtain information, the clarity or obscurity of the law, the position and role of the official who gave the information or opinion, and the clarity, definitiveness and reasonableness of the information or opinion …", viewed from the perspective of a reasonable person in a situation similar to that of the accused.

After confirming the availability of the defence at law and outlining the applicable test, the Court found on the facts that the defendant had not met the six elements of the test for the officially induced error defence in this particular case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.