Canada: Environment @ Gowlings - June 2006

Edited by Katherine van Rensburg

International

• CEC Orders Factual Record for Québec Automobiles Submission

• New Pest Control Products Act in Force

• Federal Parent Crown Corporations subject toCanadian Environmental Assessment Act

• CCME and Contaminated Sites

• Ontario and Québec Air Pollution, Smog and Climate Change Cooperation Agreement

Ontario:

• Expansion of Green Lane Landfill Approved

• Streamlined Environmental Assessment Process Planned for Infrastructure Projects

• Phase II ESA Guideline

• Drinking Water Systems in Ontario

• Municipal Hazardous or Special Waste

• Proposed Amendments to Air Regulation

• Proposed Liquid Fuels Handling Code

• Proposed Changes to Refrigerants Regulation

• Information Sharing among Provincial Agencies

Québec:

• Québec Tables Its Climate Change Action Plan

• Reporting under the New EPEA

• Greenhouse Gas Management - Michel Girard, CSA

In The Courts

• Environmental Consultant Convicted and Fined under Fisheries Act

INTERNATIONAL

On June 14^th, the Council of the North American Commission for Environmental Cooperation (CEC) instructed the CEC Secretariat to prepare a factual record regarding the claim that Canada, and specifically Québec, is failing to enforce certain provisions of Québec environmental law in connection with emissions of hydrocarbons, carbon monoxide and nitrogen oxides from post-1985 light vehicle models.

The 2004 citizen submission was filed by the Québec Association Against Air Pollution, alleging that at least 600,000, or 16 percent, of the approximately 4 million light vehicles in Québec from model years later than 1985 do not comply with the requirements of Québec laws and regulations, that in the nineteen years since these provisions came into force, the government of Québec has initiated fewer than ten prosecutions in regard to these alleged violations, and that the only way to ensure effective enforcement of this legislation is through the establishment of a mandatory automobile inspection and maintenance program that would apply to the whole fleet of automobiles in Québec, on a sufficiently frequent basis (for example, an inspection every year or two).

A response was filed by the governments of Québec and Canada in February 2005. They contend that the problem meant to be addressed by these "anti-tampering" provisions was in large part resolved by the ban on leaded gasoline that took effect in 1990, followed by the introduction of fuel injection and car engine computers. Québec is concentrating on developing a motor vehicle inspection and maintenance program that will address socio-economic and technical issues encountered in other jurisdictions have adopted such programs, and it wants to start by dealing with pollution from heavy vehicles. Québec adds that beyond strict judicial enforcement of the law, the Québec Ministry of the Environment has carried out awareness raising, educational and information activities, and has monitored the state of the automobiles on Québec's roads.

See:
www.cec.org/news/details/index.cfm?varlan=english&ID=2711

The new Pest Control Products Act, 2002 came into force on June 28th, 2006. Although the Act received Royal Assent in December 2002, it was necessary for Health Canada to develop the infrastructure needed to support the Act (including the establishment of the Public Registry, an electronic database of non-confidential information on pesticides), and for the Pest Control Products Regulations to be amended.

The new Act was designed to increase transparency and to increase post-registration control of pesticides. Several of the changes implemented by the Act had already been adopted as policies of the Pest Management Regulatory Agency, responsible for administering the Act (for example safety factors that considered additional protection of children and pregnant women and taking into account pesticide exposure from all sources, including food and water).

The new Act requires Health Canada to establish a Register of Pest Control Products, which will include applications, registrations, re-evaluations and special reviews. Most information will be available on the Public Registry (including all public information on currently registered pesticides), while certain information (confidential test data supporting a decision to register a pesticide or to amend a registration) will be available with certain restrictions in the Reading Room at the PMRA's headquarters in Ottawa. Confidential business information will continue to be protected.

The new Act requires all pesticides to be re-evaluated on a 15-year cycle. Members of the public will be able to request a Specal Review of a pesticide. The Act provides that t he precautionary principle will be applied during re-evaluations and Special Reviews, i.e., where there are threats that a registered pesticide could cause serious damage, it will not be necessary to await full scientific certainty to take cost-effective measures.

The Act provides the regulatory authority to require registrants to report sales data and any incident of potential or actual adverse effects, and provides stronger enforcement tools, including authority for inspectors to shut down an activity, require disposal of product, or measures necessary to prevent health or environmental risk, as well as increased maximum fines of $1 million.

See:
http://www.pmra-arla.gc.ca/english/legis/pcpa-e.html
for a copy of the Act, the regulations and further information.

See:
www.pmra-arla.gc.ca/english/pdf/pro/pro2006-01-e.pdf
for the draft Compliance Policy.

On June 11, 2006, certain provisions of Bill C-9, An Act to amend the Canadian Environmental Assessment Act (passed in October 2003) came into effect. These provide that parent Crown corporations will be considered "federal authorities" within the meaning of the Canadian Environmental Assessment Act (the Act) and will need to conduct environmental assessments of their projects. Forty-one Crown corporations are now considered "federal authorities" under the Act. The amendments to the Act also provide for regulations to be passed to modify the environmental assessment process for individual or a class of Crown corporations (see for example the Crown Corporations Involved in the Provision of Commercial Loans Environmental Assessment Regulation ), varying the EA requirements for Business Development Bank of Canada and Farm Credit Canada as reported in the May 2006 edition of environment@gowlings.

For more information see:
http://www.ceaa-acee.gc.ca/013/009/bg060612_e.htm.

The Canadian Council of Ministers of the Environment (CCME) has released new "Recommended Principles on Contaminated Sites Liability", replacing its 1993 Contaminated Site Liability Report. The new report is the result of a study undertaken in 2003 to determine whether the 13 existing principles for contaminated site liability remained relevant and whether additional work was required on principles to address potential liability issues associated with brownfields. The CCME has reconfirmed the original 13 principles and has added a principle entitled "Transfer of Liability". This principle suggests that legislation should provide for the transfer of regulatory environmental liability associated with a contaminated site between parties, subject to certain conditions. A number of implementation options are identified, including a requirement that liability be transferred only after remediation is completed, a requirement for financial or other assurance for completion of remediation, full disclosure, limits to liability protection for off-site contamination, etc. While the principle recognizes the importance of encouraging the redevelopment of brownfield sites, it is not entirely consistent with certain other principles carried through in the 2006 Report, such as the "paramount" principle of "polluter pays" (Principle 1) and the principle of ongoing "prospective liability" for future cleanup even after remediation and the issuance of a certificate of compliance (Principle 12).

See:
http://www.ccme.ca/ourwork/soil.html?category_id=68#345

Ontario and Québec Air Pollution, Smog and Climate Change Cooperation Agreement

Their presence at the Shared Air Summit 2006 was the occasion for Ontario Environment Minister Laurel Broten and Claude Béchard, Minister of Sustainable Development, Environment and Parks of Québec to sign a transboundary environmental agreement concerning bilateral environmental cooperation to find solutions to air quality and other environmental issues in Eastern Canada.

The Agreement between the Government of Québec and the Government of Ontario concerning Transboundary Environmental Impacts will provide for both governments to exchange information and cooperate regarding trans-boundary pollution issues such as air pollution, smog and climate change and with water management. The agreement was signed in the wake of the Protocol for Cooperation signed between the Premiers of Québec and Ontario on June 6, 2006. Mr. Béchard stated that the agreement with Ontario shows that both provinces are serious about tackling the threat of air pollution and global warming.

Expansion of Green Lane Landfill Approved

The environmental assessment of the proposed expansion of the Green Lane landfill near London has recently been approved, with conditions. The operator is required to enhance its existing monitoring program and to make changes to the design and operation of the site to prevent impacts to local ground and surface water. The landfill, which was originally approved in 1978 will provide an additional 10 million tonnes of landfill capacity.

Streamlined Environmental Assessment Process Planned for Infrastructure Projects

The MOE is planning to make changes to regulations and guidelines under the Environmental Assessment Act to shorten the government decision-making process while ensuring sound environmental planning. The proposed changes will be based on recommendations that were made by an advisory panel of experts (including Gowlings partner David Estrin) and other stakeholders, and are intended to improve the EA process for energy, transit and waste initiatives.

The MOE has released a proposed Guideline for Phase II environmental site assessments (ESAs) in Ontario where a Phase II ESA is undertaken to meet the requirements of Part XV.1 of the Environmental Protection Act (the EPA) and Regulation 153/04. The Guideline is a detailed document that provides guidance for planning a Phase II ESA, sampling methods for soil and groundwater, quality assurance/quality control for the overall project and field work and data interpretation and reporting.

Written submissions on the draft can be made until August 7, 2006.

The MOE has decided to proceed with amendments to Regulations 170/03 (Drinking Water Systems Regulation) and 169/03 (Ontario Drinking Water Quality Standards Regulation) that were proposed in June 2005. (Regulation 170/03 applies to large municipal residential systems, small municipal residential systems, and non-municipal year-round residential systems.) Additional amendments have been made in response to comments received following the EBR posting of the draft amendments, which include allowing Point of Entry (POE) treatment for small residential systems on certain terms and conditions, including ownership and responsibility for all POE equipment resting with the system owner.

The MOE has proposed a regulation that would designate wastes defined as "municipal hazardous waste" and "municipal special waste" so that the Minister could request Waste Diversion Ontario (WDO) to develop a waste diversion program for such wastes. Municipal hazardous waste and special waste would include wastes, whether or not owned, controlled or managed by a municipality. "Municipal hazardous wastes" would include corrosive, toxic, flammable, ignitable and reactive products and their containers, while "municipal special wastes" consist of a number of specific items including batteries, paints and coatings and their containers, fire extinguishers, aerosol containers, fluorescent tubes and used oil filters and pharmaceuticals. The MOE will be holding a consultation meeting with major stakeholders to seek input on the content of a draft regulation and the scope of the program that the Minister would require WDO to develop.

Following public consultations over the past 4 years, the MOE is proposing to amend O. Reg. 419/05: Air Pollution – Local Air Quality to introduce new or updated standards for 15 substances, including cadmium, lead, and sulphuric acid. It is proposed that the regulation would provide for an appropriate phase-in period for the proposed standards. Other proposed amendments would include an update of the regional meteorological data and regulatory models, reporting provisions for opacity and other administrative amendments.

The MOE has also posted a Proposed Approach for the Implementation of Odour-Based Standards and Guidelines for some odorous substances with low odour thresholds. The purpose of the proposal is to obtain stakeholder feedback on a proposed approach for the implementation of 10-minute odour-based standards and guidelines under the context of O. Reg. 419/05.

The proposals are posted for public comment until September 25, 2006 at:
www.ene.gov.on.ca/envregistry/027879er.htm

and
www.ene.gov.on.ca/envregistry/027887er.htm.

Note that specific proposals for 24-hour average ambient Air Quality Criteria (AAQCs) and half-hour point of impingement standards for each of the 15 substances are also posted for comment on the Environmental Bill of Rights Registry until September 25^th.

A new draft Ontario Liquid Fuels Handling Code, 2007 has been developed to replace the existing Code under O. Reg. 217/01. The major changes will include detailed requirements for video monitoring at self-serve facilities, requirements for remotely monitored facilities, a new section on leak detection, adopted with some modifications, from Part 4 of the National Fire Code, changes to the criteria for manual dipping, more detailed requirements for piping, and the requirement to submit an assessment report whenever an underground tank or an aboveground tank with a capacity greater than 5,000 L is removed from a facility. Comments on the proposed Code will be accepted until August 11, 2006.

See:
http://www.ene.gov.on.ca/envregistry/028037er.htm.

The MOE proposes changes to O.Reg. 189/94 to prohibit the refill with CFCs of large industrial, commercial and institutional refrigeration and air conditioning units with CFC-based refrigerants, beginning January 1, 2009. The MOE proposes to prohibit the operation of all CFC containing large units and chillers beginning January 1, 2012. The MOE proposes to require the conversion or replacement of all CFC-containing chillers upon the first major overhaul beginning January 1, 2009.

If a chiller owner has already planned the replacement of their chiller, they can submit a plan to the ministry in order to continue to use their chiller until the date indicated in their plan. This plan will identify the chiller to be replaced (e.g., serial number, location) and the date by which work will be complete. Plans must be submitted to the Ministry of the Environment by January 1, 2009, and all work must be completed before January 1, 2011.

If a chiller has an unanticipated failure (e.g., in the middle of summer), equipment owners may repair and refill the machine on the condition that they notify the MOE once the work is complete. Owners (without a plan) would be required to convert the chiller to a non-CFC refrigerant or replace the machine within one year. The MOE would have to be notified upon completion.

Comments on the proposed changes to the regulation can be made until August 26, 2006.

Bill 69, the Regulatory Modernization Act, 2006 was given first reading in February 2006 and, after some public consultation the Bill has been posted on the EBR Registry for comment until August 15, 2006. Introduced by the Minister of Labour, the Bill has broad implications for other ministries, and is expected to apply to information collected by, and inspections and enforcement undertaken by the Ministry of the Environment.

The Bill proposes to enable designated ministries, agencies and other regulatory entities to share various types of information, including:

the legal and business names of an organization (which would include an individual who is a sole proprietor)

the address, telephone number, fax number and e-mail address of a facility, principal place, head office or other place where the organization operates,

any identifying number, symbol or other identifier assigned to an organization under designated legislation,

statistical information about an organization and the sector or industry in which the organization operates,

with respect to a licence, permit, certificate or other similar approval that an organization may or is required to obtain under designated legislation, information about its issuance or renewal, a refusal to issue or renew it or its suspension, revocation or cancellation,

information about complaints filed in respect of an organization where the complaint is regarding conduct that may be in contravention of designated legislation,

information compiled in connection with an examination, test, audit, inspection, investigation or other inquiry with respect to an organization under designated legislation, including but not limited to, information regarding forms, notes or reports generated by the inquiry,

information related to an organization's compliance with designated legislation, including convictions and penalties, orders or notices,

the name, home address and home telephone number of an owner, officer or director of an organization, and information about permits, approvals and complaints related to that party.

Such information would be capable of being shared for a variety of purposes including, to assist in an audit, inspection or other inquiry under designated legislation, to assist with an appeal, review or other similar administrative proceeding, and to assist with a sentencing proceeding.

Bill 69 would also permit a person who is engaged in an inspection or other authorized activity under one statute or regulation to disclose to another designated agency any observation that is likely to be relevant to the administration or enforcement of its legislation. This "heads up" authority would be limited to the disclosure of observations, and would not authorize field staff to conduct inspections under statutes they are not authorized to enforce. However, other changes to be introduced by Bill 69 would permit ministers to authorize certain individuals to perform functions under more than one piece of legislation or regulation. These special teams of compliance officers would be authorized to act on behalf of multiple ministries, targeting areas of joint inter-ministry concern.

Bill 69 would authorize the publication of compliance information about organizations, including information about compliance activities and convictions that occurred before the Act comes into force. Finally, Bill 69 would permit a court to consider a defendant's conviction under one Act or regulation to be considered in sentencing for an offence under an Act or regulation administered by a different agency.

Written submissions on Bill 69 will be accepted until August 15, 2006.

See:
www.ontla.on.ca/documents/Bills/38_Parliament/session2/b069_e.htm

Québec Tables its Climate Change Action Plan

Québec having set under the Kyoto Protocol an objective to reduce by 13.8 million tons its greenhouse gas (GHG) emissions, the government tabled on June 15, 2006 its climate change action plan entitled " Québec and Climate Change – A Challenge for the Future" ("Action Plan") that proposes 24 actions to be implemented before 2012 in order to reduce or to avoid 10 million tons of GHG emissions in Québec, leaving to the Federal government the responsibility to finance an additional reduction of 3.8 million tons of GHGs in order to allow Québec to meet its objective. The implementation of the Action Plan will be financed through 1.2 billion dollars in investment by the government over the next 6 years, i.e. 200 million dollars per year that will be deposited in the Québec Green Fund created following the adoption of the Sustainable Development Act . The government intends to rely on the polluter-pay principle in order to finance these sums by a levy on hydrocarbons imposed on GHG emitting companies in the energy sector.

Besides measure to raise public awareness and encourage research, development and deployment of new technologies, the proposed actions to reduce or avoid GHG emissions will be implemented in the energy, transportation, industrial, residual materials, agriculture and governmental sectors. Amongst the most important measures described in the Action Plan, the government intends to put in place a program towards financing energy efficiency for individuals, industries, institutions, businesses and municipalities in Québec, which measures represent a potential GHG reduction by 2012 of 600 kilotons ("kt"). Québec also proposes to adopt the necessary mechanisms to require manufacturers of light vehicles sold in Québec to comply with emission standards as of 2010 that should result in a potential reduction of 1,700 kt. A 5% ethanol content in fuel by 2012 should also represent an additional reduction of 780 kt. The plan further proposes to implement a program towards technological innovation with respect to energy efficiency in the transportation of goods section that would result in a potential reduction of 900 kt as well as the adoption of appropriate regulatory requirements or limiting the maximum speed of heavy vehicles at 105 km/h for a potential reduction of 330 kt. At the industrial level, the government intends to negotiate voluntary GHG reduction agreements in the Québec industrial sector that will result in a potential reduction of 940 kt. The implementation of the Regulation respecting halocarbons represents a further 700 kt potential reduction. Added to these measures, the plan mentions that the implementation of the Regulation respecting the landfilling and incineration of residual materials as well as appropriate financial support towards biogas recovery from landfill sites will represent a potential GHG reduction of 3,000 kt. Other measures in the agricultural sector will result in potential reduction of 300 kt. Besides allocating funds for public awareness initiatives to raise the population's awareness of the importance of being active in the fight against climate change, the government itself shall require each of its ministries to prepare programs by 2008 to reduce GHG emissions resulting from their employees travelling to work. The government also intends to improve by 2010 the energy efficiency within public buildings by 10% to 14% below the 2003 level as well as to reduce by 20% fuel consumption within its ministries and public organizations that will represent an additional GHG reduction of 150 kt.

According to the government, the tabling of the Action Plan confirms Québec's commitment to sustainable development and its determination to respect the Kyoto Protocol's objectives, encouraging, by the same token, the Federal government to respond positively to Québec's leadership.

The Action Plan can be viewed at:
http://www.mddep.gouv.qc.ca/changements/plan_action/2006-2012_en.pdf.

On May 24, 2006, the Environmental Protection and Enhancement Amendment Act, 2006 came into force. This Act amended the Environmental Protection and Enhancement Act (EPEA) , R.S.A. 2000 c. E-12. Of particular significance was the change to section 110 of the EPEA . This change clarified an existing revision in relation to the reporting of a historical release.

One criticism of this new amendment is the lack of compliance and enforcement provisions. The new duty to report must be accompanied by amendments to sections 227 and 228 of the EPEA to make failure to report an offence and to establish a penalty for such an offence.

Michel Girard, Director at the Canadian Standards Association (CSA) is the author of the following article on ISO's 14064 series of standards for greenhouse gas emissions. We thank Mr. Girard for his contribution.

With the spike in climate-related natural disasters, many scientists are predicting grim scenarios unless serious greenhouse gas emissions reduction takes place. But most climate change experts agree: the technology to help slow global warming is available now. Quite simply, we need to take an active role in managing our greenhouse gas (GHG) emissions to meet the climate change challenge.

What's missing though, are clear signals from both governments and the market to create long term demand for verified emission reductions. The National Roundtable on the Environment and the Economy makes a similar point in its June 2006 report Advice on a Long-term Strategy on Energy and Climate Change.

In the meantime, organizations can take steps to measure their "carbon footprint". Large GHG emitters in Canada are required to report their releases by governments, but the vast majority of organizations are not currently required to undertake an inventory. In April 2006, Canada adopted the International Standards Organization (ISO)'s ISO 14064 series of standards . CSA acted as the world secretariat to an ISO Working Group (TC 207 – WG 6) to develop these new standards. These voluntary standards create a framework which allows organizations to measure, report and audit their GHG emissions. And, with that information, they can then identify candidate projects to help improve energy efficiency, reduce emissions, save money and mitigate climate change. The CAN/CSA ISO 14064 series also includes steps to help document such projects and translate verified emission reductions into GHG credits – a new commodity.

As the international carbon market grows, lawyers will increasingly be called upon to work out credit trading contracts; whether to treat the commodity like other securities; whether it can be used as collateral; and how to incorporate GHG management into global supply chain management contracts.

The standards can help provide a common international architecture and support GHG reduction programs through a consistent and comparable method for quantification, reporting, and verification. They will also help institutional investors assess and manage climate investment risks before making funding or investment decisions, since they will help facilitate access to better GHG information from organizations.

But the first step is taking stock. "You can only manage what you can count."

A landmark decision handed down by Judge Yvette Finn of the Provincial Court of New Brunswick on April 26, 2006 marks the first time an engineering consulting firm and a principal/project manager of an engineering firm were convicted under federal environmental law. Both the corporation, Gemtec, and the majority owner and principal engineer, Robert Lutes, were charged and convicted of violating s. 36(3) of the Fisheries Act (depositing or permitting the deposit of a deleterious substance into waters frequented by fish) .

The case arose after leachate from a landfill entered watercourses in violation of the Fisheries Act. Gemtec was retained to conduct a study, make recommendations and implement a closure plan for the Moncton Landfill starting in 1993. The court found that they had sufficient impact on the decisions and the implementation of the closure plan to be included as parties to the offence. The defendants were found to have recommended a closure plan that did not adequately attempt to contain and/or prevent the deposit of the toxic leachate into Jonathan Creek and the Peticodiac River which were adjacent to the landfill site. The court noted that the preparation and implementation of the closure plan was executed under the direction of a steering committee composed o representatives from Gemtec, the City of Moncton and officials of the New Brunswick Department of Environment, who was providing one half of the funding under its waste management program. Charges were initiated after an environmental group, the Peticodiac Riverkeepers, lodged a complaint with Environment Canada.

The court employed the test from R v. Sault Ste. Marie [1978] 2 S.C.R. 1299 to establish whether the defendants deposited or permitted the deposit of leachate. The test states that if a defendant can and should control the activity at the point where pollution occurs, then it is responsible for the pollution. Whether it "discharges", "causes", or "permits" the pollution will be a question of degree depending on whether the defendant is actively involved at the point where the pollution occurs. The court found that Gemtec's job was not only to recommend but to develop and implement a plan and that the defendants exercised a large measure of control over the plan. The fact that proposals needed approval did not mean that Gemtec was only an advisor. Additionally, mitigation measures taken later at relatively low cost reduced the direct discharge by as much as 95%. Based on the evidence, the defendants were found not to have taken all reasonable steps to prevent the deposit. The court also rejected the defendants' due diligence defence, finding that not only did they fail to implement measures to avoid a deposit of a deleterious substance, they had addressed the Fisheries Act issue at all and had not recommended any such measures to avoid a deposit in contravention of the Act.

The maximum fine for a first office under the Fisheries Act is $300,000. Gemtec and Mr. Lutes were sentenced to pay a total of $25,000 and $3,000 respectively. The company was fined $5,000 and Lutes was fined $1,000 for involvement in the offences. In addition Gemtec must contribute $10,000 to the Government of Canada's Environmental Damages Fund and Lutes must contribute $1,000 to the same fund, which is used to restore and prevent environmental damage. Lastly, Gemtec must pay $10,000 and Lutes $1,000 to a local environmental organization.

The City of Moncton and a Moncton City Engineer were also charged, however their case never went to trial as the City pleaded guilty and was fined $35,000 and ordered to take remedial measures to reduce leachate flow from the landfill site, while the charges against the City Engineer were dropped.

This case confirms that consultants who fail to adequately consider and attempt to ensure compliance with environmental law can and may be held accountable for their role in environmental offences. Their professional judgment may be put on trial; they may be liable for failing to recommend appropriate measures to respond to environmental conditions they did not create.

The copy of the decision can be found online at:
http://www.peticodiac.org/riverkeeper/Documents/Final_Decision(Gemtec).pdf.

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.