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April 2004 – Volume 1, Number 4 | |
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The Gowlings Environmental Law Group delivers prompt, comprehensive
and practical advice to assist clients in addressing environmental
challenges. For further information on Gowlings Services in this area, please contact our Environmental Law National Practice Group. |
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Editorial Staff |
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| Executive Editor | |
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Katherine van Rensburg (Toronto) |
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| Contributors | |
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Nadine Berge (Calgary) Stacey Ferrara (Toronto) Sharon Fortis (Toronto) Mark Madras (Toronto) Jennifer Mesquita (Toronto) |
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| Production Staff | |
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Gary Aung |
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| In this issue | printer friendly version |
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FEDERAL LEGISLATION & REGULATORY NEWS
- Code of Practice for the Environmental Management of Road Salts
- Bill C-45 Amendments to the Criminal Code
- Proposed Amendments to CEPA Regulations
- Draft Emissions Trading Legislation Underway
- NPRI Submissions
- Canada-Ontario Agreement on Environmental Assessment Cooperation Drafted
- Canada's Agenda to Reduce VOC Emissions from Consumer and Commercial Products
- ONTARIO
- ONTARIO & QUÉBEC
- BRITISH COLUMBIA
IN THE COURTS
- Common Law Class Action Filed for Damages from Sydney Tar Ponds in Nova Scotia
- Supreme Court of Canada to Decide on Environmental Liability under BC Legislation
- Environmental Law Update for Panama
- Environmental Assessment Scoping
- Safe Drinking Water - Responsibilty and Liability
- Sustainable Great Lakes Conference
- RIELA'S Inter-American Seminar on Environmental Law
PROVINCES/TERRITORIES
RIELA
WHAT'S NEW
GOWLINGS SPEAKING ENGAGEMENTS
FEDERAL LEGISLATION & REGULATORY NEWS
CODE OF PRACTICE FOR THE ENVIRONMENTAL MANAGEMENT OF ROAD SALTS
Following pre-publication and a
public comment period, Environment Canada has issued the final Code of Practice for the
Environmental Management of Road Salts (the “Code”), under section 54(1) of the Canadian
Environmental Protection Act, 1999 (published in Part I of the Canada Gazette:
http://canadagazette.gc.ca/partI/2004/20040403/pdf/g1-13814.pdf).
The Code applies to “organizations” which are defined to include public entities that use or are responsible for the use of road salts on public roads in Canada and companies that hold a concession or lease to manage a public road. Organizations that use more than 500 tonnes of road salts per year and organizations that have vulnerable areas in their territory that could potentially be impacted by road salts have one year to prepare a salt management plan containing best management practices to protect the environment from the negative impacts of road salts. Annexes to the Code provide guidance for the identification of environmental impact indicators (Annex A) and vulnerable areas (Annex B) as well as a suggested approach to monitoring and measuring progress in road salt use, the implementation of best management practices and the concentration of road salts in the environment (Annex C).
BILL C-45 AMENDMENTS TO THE CRIMINAL CODE
The scope of a corporation's liability for criminal offences as defined by the Criminal Code was recently broadened as various amendments imposed by Bill C-45, An Act to amend the Criminal Code (criminal liability of organizations) came into force on March 31, 2004.
Bill C-45's amendments establish rules for attributing criminal liability to organizations, now defined to include corporations, partnerships, municipalities and various other entities, for the acts of their representatives. Bill C-45's amendments define the circumstances in which a organization will be treated as a party to criminal offences. Bill C-45's amendments to the Criminal Code have codified the common law concept that corporations may be held criminally liable for the criminal acts and omissions of their servants, and have significantly broadened the range of corporation-related individuals that can trigger the criminal liability of the organizations that they represent.
In addition, the newly added section 217.1 of the Criminal Code creates a new statutory duty and standard of care for those who direct how another person does work or performs a task, requiring them to take reasonable steps to prevent bodily harm from arising as a result of the directed work or task, either to the individual receiving direction, or any other person.
Bill C-45's amendments were actually adopted to establish a means to attribute corporate criminal liability for occupational health and safety incidents in response to Nova Scotia's Westray mine disaster. In 1992, a methane explosion in a mine killed 26 workers that were working in unsafe conditions that were known to the corporation. Criminal proceedings against the corporation and the mine's managers were unsuccessful. While broadening the scope of corporate criminal liability, Bill C-45's broadly worded Criminal Code amendments have also effectively broadened the scope of corporate environmental liability.
For a more detailed explanation of Bill C-45's amendments to the Criminal Code, read Stacey Ferrara's article, “Broadened Scope of Corporate Criminal (and Environmental) Liabililty” available on Gowlings' Web site: http://www.gowlings.ca/resources/publications.asp?pubid=997.
PROPOSED AMENDMENTS TO CEPA REGULATIONS
Health Canada and Environment Canada are jointly
sponsoring proposed amendments to three different regulations enacted under the Canadian
Environmental Protection Act, 1999 (“CEPA, 1999”). The proposed regulations have been
pre-published in the Canada Gazette Part I, and interested persons may provide comments
within 60 days of April 3, 2004 (see
www.canadagazette.gc.ca/partI/2004/20040403/pdf/g1-13814.pdf).
The first proposed regulation amends the Ozone Depleting Substances Regulations, 1998 and is intended to ensure that users presently unable to switch to non-ozone depleting substances have access to HCFCs, without undermining Canada's overall reduction commitment. The amended regulation would permit the permanent transfer of part or all of a company's allowance to other companies within the same sector, rather than requiring annual renewal. Similarly, Environment Canada would be authorized to retain and redistribute retired allowances. In relation to non-cooling uses of ozone-depleting substances, the regulation proposes an annual calculation of consumption allowances and a transitional 2-year “use it or lose it” system of allocation. The regulation would also prohibit the export of Halons and CFCs, except for destruction or “essential purposes.”
The second proposed regulation makes minor amendments to clarify the Vinyl Chloride Release Regulations, 1992 and do not propose to alter the content or intent of the regulations.
The third proposed regulation would repeal and replace the Prohibition of Certain Toxic Substances Regulations, 2003. The new Total, Partial or Conditional Prohibition of Certain Toxic Substances Regulations provides greater flexibility to the federal government in managing substances that require tight constraints, but not necessarily a complete ban on sale, use, or import. The proposed amendments would also add Dichlorodiphenyltrichloroethane (DDT) to the Total Prohibition List under CEPA, 1999 and to the List of Toxic Substances, and introduce reporting and record-keeping requirements on hexachlorobenzene, benzidine and benzidine dihydrochloride. Finally, the proposed amendments would create a permit system allowing temporary exemptions to be granted, where a transition period is required to find or implement alternatives to the toxic substance in question.
These proposed regulations will come into effect on their dates of registration which will occur after the public comment period is exhausted and the regulations are posted in Part II of the Canada Gazette. The Total, Partial or Conditional Prohibition of Certain Toxic Substances Regulations, 2003 will come into effect three months after its registration.
DRAFT EMISSIONS TRADING LEGISLATION UNDERWAY
Natural Resources Canada is currently consulting with Large Final Emitters (LFEs) in order to draft legislation and regulations to support greenhouse gas emissions reduction. The federal government has indicated that this initiative will go ahead regardless of whether the Kyoto Protocol is ratified, but it is part of its strategy to meet its obligations under the Protocol. The goal is to reduce emissions to 85 per cent of forecast 2010 emissions and emissions of the LFEs will be capped to permit this.
Part of the regime will be a system to allow the trading of credits or allocations to allow companies to balance out excess emissions. Draft legislation to provide a framework for the regime is expected to go to Cabinet in the fall of 2004. If approved, it will go before Parliament early in 2005. A full-fledged legislative regime would be in place as early as 2007 so that Canada is prepared for the first Kyoto compliance period of 2008-2012. The federal government has already put in place an emissions reporting regime as a first step in this process.
Guidance for submissions of 2003 data to Environment
Canada's National Pollutant Release Inventory (NPRI) is now available through a single
guidance document and an internet-based “Toolbox” that explains how releases of NPRI
substances can be estimated. 2003 NPRI reports must be submitted by June 1, 2004 and
may be submitted via the Internet. For more details, visit the NPRI Web site online at
http://www.ec.gc.ca/pdb/npri/npri_home_e.cfm.
CANADA-ONTARIO AGREEMENT ON ENVIRONMENTAL ASSESSMENT COOPERATION DRAFTED
Projects that are subject to environmental
assessments under both Canada's and Ontario's environmental assessment legislation may
soon be formally guided through both processes simultaneously. This would typically
include municipal and provincial projects that require federal environmental approvals,
permits, licences or involve federal funding (i.e. infrastructure projects). The draft
Canada-Ontario Agreement on Environmental Assessment Cooperation was released on April 14, 2004.
It encourages efficiency and establishes administrative mechanisms for cooperative
federal/provincial environmental assessments with a single point of contact. Public
comments on the draft agreement will be accepted through May 14, 2004 and the draft
agreement is available online at
http://www.ene.gov.on.ca/programs/4327e01.pdf.
CANADA'S AGENDA TO REDUCE VOC EMISSIONS FROM CONSUMER AND COMMERCIAL PRODUCTS
The Government of Canada has announced a Federal Agenda to reduce VOC emissions from consumer and commercial products.
Between 2004 and 2010 Canada will develop and implement a series of VOC emission reduction measures targeted at consumer and commercial products. These measures have been developed having particular regard to control actions in place in the United States. It may be expected that Canada will utilize similar approaches and strategies to those in effect south of its border.
Canada intends to establish VOC reduction regulations. These would take effect under Part V of the Canadian Environmental Protection Act, 1999. Maximum VOC content limits for certain consumer and commercial products would be prescribed. Canadian regulations are expected to be developed through the federal regulatory process commencing in 2004, with implementation targeted for architectural and industrial maintenance coatings by 2006, automobile refinish coatings by 2007, and consumer products by 2007.
Canada has identified particulate matter and ground level ozone as the main ingredients of smog and the cause of serious health effects for Canadians, including thousands of premature deaths, hospital admissions and emergency room visits every year. The government also points to recent studies which have confirmed these negative effects and which have shown that air pollution is also associated with an increased risk of lung cancer and heart disease.
The Federal Agenda to reduce emissions of VOCs from consumer and commercial products builds upon initiatives which the Government of Canada has already taken for clean air, including the development of Canada-wide Standards for ground level ozone and particulate matter, as well as reflecting its commitment to the Ozone Annex to the 1991 Canada-U.S. Air Quality Agreement. Resources for clean air initiatives were announced in the federal budgets of February 2001 and February 2003.
A summary of the Federal Agenda on the Reduction of Emissions of Volatile Organic Compounds from Consumer and Commercial Products was published in the Canada Gazette Part I on March 27, 2004. The initiatives set out in the Agenda, and in particular regulation development, will proceed in accordance with established procedures, which will include consultation with significant stakeholders.
For further information see:
www.ec.gc.ca/nopp/DOCS/notices/voc/en/index.cfm.
PROVINCES/TERRITORIES
ONTARIO
STRICTER DRIVE CLEAN STANDARDS FOR HEAVY-DUTY TRUCKS AND BUSES
Ontario's Drive Clean program for large trucks and buses adopted tougher emission standards on April 1, 2004. Heavy-duty vehicles must pass regular emissions tests in order to have their registrations renewed under Ontario's Drive Clean program. This applies to diesel-powered vehicles registered anywhere in Ontario and to heavy-duty non-diesel vehicles in the areas of Southern Ontario where light-duty testing is required. The new diesel vehicle emissions test standards impose stricter opacity standards to reduce the emission of fine particles or particulate matter. Additional information is available from the Drive Clean Web site at http://www.driveclean.com/. Ontario's Ministry of the Environment has also indicated that it is currently consulting with stakeholders to develop a strategy to address heavy-duty truck and bus idling.
Ontario's Ministry of the Environment and Ministry of Natural Resources recently announced a waste diversion strategy that includes the introduction of legislation (the Adams Mine Lake Act, 2004) that would, if passed, ensure that Adams Mine would never be used as a landfill. The proposed legislation would also prevent the use of lakes larger than one hectare as landfill sites. The government's new waste management strategy also included a commitment to release a discussion paper in the Spring of 2004 for consultation regarding options for achieving the government's 60 per cent waste diversion target. Expected topics include greater recycling in the private sector, developing new markets for recycled materials, increasing organic diversion, and examining the expansion of central composting facilities and the role of new technologies to support waste diversion. The strategy also promised an improvement of Ontario's environmental assessment process for waste management facilities, transit and transportation projects and clean energy facilities.
MINISTRY OF NATURAL RESOURCES POLICIES
Following the submission of public comments through the Environmental Bill of Rights (EBR) Registry, the Ministry of Natural Resources (MNR) has posted notice of its decision on the development of a policy and procedure for the disposition of wind power development on Crown land. The purpose of the policy is to provide the opportunity to test, monitor and where viable, develop Crown land wind resources, provided that project proposals contribute to the environmental, social and economic well-being of the province. The policy is available online at http://www.mnr.gov.on.ca/MNR/EBR/wind_power/PL_4.10.04(POL)Mar_31_2004.pdf.
Ontario's MNR is currently accepting public comments regarding the draft “New Site Release and Development Review Policy” which addresses waterpower development in Ontario. The policy describes the process for releasing greenfield Crown opportunities for potential waterpower development, the approval process for both private and Crown lands, the use of a generic Waterpower Lease Agreement to secure tenure and rental rates and taxes. The proposed policy will be posted on the EBR Registry for public comment until June 1, 2004 and is available at http://www.ene.gov.on.ca/envregistry/022737ep.htm.
ONTARIO & QUÉBEC
PROPOSED AGREEMENT CONCERNING TRANSBOUNDARY ENVIRONMENTAL IMPACTS
Ontario's Minister of the Environment has posted a proposal for an Agreement Between Ontario and Québec Concerning Transboundary Environmental Impacts on the EBR Registry. The agreement focuses on the exchange of information and the development of joint cooperation mechanisms in areas related to transboundary environmental impacts between Québec and Ontario. The proposal is posted at http://www.ene.gov.on.ca/envregistry/022471ep.htm and public comments will be accepted until May 22, 2004.
BRITISH COLUMBIA
AMENDING THE SPECIAL WASTE REGULATION
British Columbia's Ministry of Water, Land and Air
Protection has recently proposed various amendments to the Special Waste Regulation,
promulgated under the province's Waste Management Act. The proposed amendments
are consequential to the changes in the federal Transportation of Dangerous Goods
Regulations and the introduction of the new federal Inter-provincial Movement of
Hazardous Waste Regulation. These amendments are transitional in nature and are
the first of three anticipated phases of amendments. More information is available at
http://wlapwww.gov.bc.ca/epdpa/sw/reg_amendments/regamend.html.
WATER, LAND AND AIR PROTECTION STATUTES AMENDMENT ACT, 2004
B.C.'s Minister of Water, Land and Air Protection, Bill Barisoff, recently introduced the Water, Land and Air Protection Statutes Amendment Act, 2004 (“Bill 16”). Bill 16 would amend B.C.'s existing Environmental Management Act to clarify the authority of conservation officers to provide compliance and enforcement services. The circumstances that will allow the issuance of a search warrant would also be clarified. Both the Environmental Management Act and the Integrated Pest Management Act are proposed to be amended to limit the reporting procedures defined in the Offence Act to apply only to property that is seized as evidence through the investigation of an alleged offence.
This amendment would effectively exclude samples
that are routinely taken for inspection purposes from the reporting procedures. In
addition, Bill 16 also proposes to amend the limitation period for laying charges under the
Environmental Management Act, the Integrated Pest Management Act, the
Wildlife Act, the Ecological Reserve Act and the Park Act to three
years from the time of the offence or 18 months from the time that an alleged offence
comes to the attention of the Minister. BC's Bill 16 is available online at:
http://www2.news.gov.bc.ca/nrm_news_release/2004WLAP0010-000171.htm.
IN THE COURTS
COMMON LAW CLASS ACTION FILED FOR DAMAGES FROM SYDNEY TAR PONDS IN NOVA SCOTIA
Canada's federal government, the province of Nova Scotia, and various corporations involved in steel making at the Sydney Tar Ponds in Nova Scotia were recently named as defendants in a class proceeding filed in Nova Scotia, a jurisdiction without comprehensive class proceedings legislation. The Tar Ponds are widely recognized as the worst toxic waste site in Canada as they include more than 700,000 tonnes of toxic waste. The classes of plaintiffs are represented by four life-long residents of the Sydney, Nova Scotia area and their claim seeks damages for injuries to personal health and property damage. The plaintiffs are also seeking recognition of the serious health risk in the Tar Ponds resulting from the toxic emissions of the steel making defendants and the contribution of funds to establish a medical monitoring mechanism. The progress of this Nova Scotia environmental class proceeding promises to be interesting and will be monitored and reported in future editions of Gowlings Environmental Bulletin.
SUPREME COURT OF CANADA TO DECIDE ON ENVIRONMENTAL LIABILITY UNDER BC LEGISLATION
Canada's highest court has recently granted leave to hear the appeal of a British Columbia Court of Appeal judgement which addressed the question of whether B.C. Hydro and Power Authority (“B.C. Hydro”) could be subject to a remediation order under BC's Waste Management Act. The source of B.C. Hydro's potential statutory liability is the previous actions of B.C. Electric Corporation (“B.C. Electric”), a corporation that is no longer in existence but had amalgamated with two other corporations in 1965 to form B.C. Hydro and was later declared to be dissolved by special statute. The Supreme Court of Canada will address the issues surrounding the potential flow of liability through B.C. Electric's amalgamation agreement and the resulting application of the Waste Management Act, legislation that encompasses the polluter-pays principle. The progress of this appeal before the Supreme Court of Canada will be monitored and reported in future editions of Gowlings Environmental Bulletin.
RIELA
ENVIRONMENTAL LAW UPDATE FOR PANAMA
Panama's National Environmental Authority (ANAM) has announced its intention to draft regulations to control air emissions of toxic gases, from vehicles, industries, and commercial activities throughout the District of Panama. According to studies undertaken by the University of Panama's Specialized Analysis Institute, 90% of the air pollution in Panama City is attributable to vehicles, 5 per cent to industrial pollution, 3% to refrigeration and 2% to natural causes. Panama City benefits, however, from its coastal location and a lower level of industrialization than Chile or Mexico, reducing the capital city's burden of atmospheric pollutants. Draft legislation has also been proposed to deal with the prohibition of toxic waste in Panamanian waters.
On the international front, during 2003 Panama enacted enabling legislation for both the Stockholm Convention on Persistent Organic Pollutants, and the Protocol Concerning Pollution from Land-Based Sources and Activities. At the local level, ANAM initiated an environmental law training program to strengthen municipal environmental management. The program will review administrative and judicial procedures to ensure the correct use of public property, natural resources and environmental services, and efforts to foster cleaner production processes.
This update on developments in Panama is provided courtesy of Benedetti & Benedetti, a full-service law firm specializing in environmental law, and the Panamanian representative to RIELA. For more information see the firm's Web site, www.benedetti.com.pa, or email Alida Benedetti at alida@benedetti.com.pa.
WHAT'S NEW
ENVIRONMENTAL ASSESSMENT SCOPING
Gowlings' Environmental National Practice Group
Members David Estrin and Jennifer Mesquita have recently co-authored a comparative
review of the scope of environmental assessment projects in Ontario, and at the federal
level in both Canada and the US. Highlights from the paper were presented by David
Estrin to the International Association for Impact Assessment's
24th Annual Conference in Vancouver. The paper,
entitled Scoping: A Comparative Review of Legal Requirements & Public Expectations
Under Canadian, Ontario and U.S. Environmental Assessment Regimes, is available
online at
http://www.gowlings.com/resources/PublicationPDFs/.
SAFE DRINKING WATER - RESPONSIBILTY AND LIABILITY
Katherine van Rensburg spoke at the Canadian
Institute's Safe Drinking Water conference on April 27, 2004. A copy of the paper
she presented, Responsibility and Liability for Unsafe Drinking Water: Who's
Accountable Now? is available online at
http://www.gowlings.com/resources/PublicationPDFs/SafeDrinkingWater.pdf. The paper
was co-authored by Katherine, associate Stacey Ferrara and articling student, Sarah
Campbell.
GOWLINGS SPEAKING ENGAGEMENTS
SUSTAINABLE GREAT LAKES CONFERENCE
Mark Madras will be speaking on “Toxic Hotspots,”
at the Action Toward a Sustainable Great Lakes conference from May 4-6, 2004, be held
in Cleveland, Ohio. For details see
www.glc.org/meeting/pdf/Sustainability_Prelim_Agenda.pdf.
RIELA'S INTER-AMERICAN SEMINAR ON ENVIRONMENTAL LAW
Jennifer Mesquita will be speaking at RIELA's
Inter-American Seminar on Environmental Law, to be held in Asuncion, Paraguay, on
May 27, 2004, on source water protection, regulation of pesticides and litigation
involving GMOs. Mark Madras will be addressing Canada's climate change framework, by
way of videoconference. For a copy of the full agenda, see
http://www.gowlings.com/resources/pdfs/Riela.pdf.
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