FEDERAL

• New Substances Notification Regulations to be Repealed and Replaced
• Pollution Prevention Plans for Nonylphenols and Ethoxylates
• Draft Regulatory Standard, S-307, Requirements for the Disposal of Nuclear Substances
• Canada-Ontario Agreement on Environmental Assessment Co-operation
• Proposal to Revise the Canadian Drinking Water Guidelines for Arsenic
• Approaches to Reducing On-site Residential Waste Combustion
  ONTARIO
  
• Environmental Commissioner of Ontario's Annual Report 2003-2004
• 10-Year Review of the Environmental Bill of Rights
• Pre-Treatment Requirements for Hazardous Waste Prior to Land Disposal (Land Disposal Restrictions) -Draft Regulation
• Proposed Amendments to Drinking Water Systems Regulation (O. Reg. 170/03)
• Bill 133 - Comment Period Extended
• Rules for Stewards with Respect to Payment of Fees for Blue Box Program Plan for 2005


RECENT CASES

• Sutcliffe v. Ontario (Minister of the Environment)
• Canadian Company Sued Under U.S. Superfund Law (Update)
• Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), Supreme Court of Canada, (2004)


WHAT'S HAPPENING?

• Conference - What's New in Environmental Law & Regulation in Ontario - December 8, 2004
• Ontario Bar Association's Annual Institute - February 4, 2005

FEDERAL

NEW SUBSTANCES NOTIFICATION REGULATIONS TO BE REPEALED AND REPLACED

The New Substances Notification Regulations made pursuant to the Canadian Environmental Protection Act, 1999 are to be replaced by the New Substances Notification Regulation (Chemicals or Polymers) and the New Substances Notification Regulation (Organisms). The proposed Regulations were published in the October 30, 2004 Canada Gazette Part I. The comment period for the proposed Regulations expires on December 29, 2004.

The proposed Regulations are part of a new regulatory structure that divides the New Substances Notification Regulations (“NSNR”) into two distinct Regulations.

The proposed NSNR (Chemicals and Polymers) applies to those persons importing or manufacturing new chemicals or polymers and requires specific information to be provided where the chemical or polymer does not appear on the Domestic Substances List. Chemicals and polymers on the Non-Domestic Substances List benefit from reduced reporting requirements but continue to be obligated to follow the notification and assessment process.

The proposed Regulations are intended to simplify the regulatory structure for new substances notification and assessment, and provide flow-charts to assist notifiers in identifying relevant provisions and schedules.

Key changes reflected in the proposed Regulations are:

• notifiers are no longer required to track their cumulative and in-possession quantities of new chemicals and polymers
• the previously separate categories of “research and development” and “product development” substances are simplified into a single definition
• notifiers of special category (e.g. research and development) chemicals and polymers are only required to submit test data that are already available rather than generating new test data specifically for the purpose of notification
• information requirements and the import/manufacturing volumes that trigger their submission have been optimized for each category of chemical and polymer
• there are new notification requirements for high-volume chemicals and polymers that are specified on the NDSL and which meet specific criteria that are indicative of significant human exposure and/or release into the environment
• the proposed Regulations clearly identify the compliance requirements for tested data
• the assessment periods prescribed for the evaluation of notifications have been optimized

The proposed Regulations for chemicals and polymers are intended to optimize both the type of information required for notification and when this information is to be provided to Environment Canada and Health Canada. Additional anticipated benefits include a quicker time to market and cost savings to notifiers.

The NSNR (Organisms) provide for only minor amendments to the provisions relating to organisms previously contained in Part 2.1 of the NSNR. Three substantive changes include:

• provisions for substances not listed on the DSL and manufactured or imported prior to June 30, 1994 have expired and therefore are not included in the proposed Regulations
• the definition of “research and development substances” is revised in the proposed regulations to include explicit reference to organisms and scale-up trials
• the proposed Regulations contain a requirement for notifiers to provide a signed certification attesting to the accuracy and completeness of notification information.

For more information see: volume 138, no. 44 Canada Gazette Part I, October 30, 2004 pgs. 3031 to 3106, or
nsn-infoline@ec.gc.ca.

Pollution Prevention Plans for Nonylphenols and Ethoxylates

A Notice requiring the preparation and implementation of pollution prevention plans for Nonylphenols (NP) and Nonylphenol ethoxylates (NPEs) was published in the Canada Gazette Part I on December 1, 2004.

The Notice applies to any persons who own or operate a facility that manufactures soap, cleaning products or processing aids used in textile wet processing or pulp and paper processing aids, or such persons who import such products. There is a quantity exemption for those persons who purchase or otherwise acquire 2000 kilograms of NP and NPEs or less in any one calendar year. The pollution prevention plans require each person subject to the Notice to achieve a 50% reduction from base-year levels by 2007, followed by a 95% reduction from base-year levels by 2010.

The base-year will be 1998, or the first calendar year after 1998 where the person subject to the notice has purchased or otherwise acquired 2000 kilograms or more of NP or NPEs.

For further information please see: volume 138 no. 49, Canada Gazette Part I, December 4, 2004.

Draft Regulatory Standard, S-307, Requirements for the Disposal of Nuclear Substances

The Canadian Nuclear Safety Commission (“CNSC”) issued the draft Regulatory Standard on November 22, 2004 for public review and comment. The proposed Regulatory Standard, when incorporated into a licence, will set the terms and conditions by which the disposal of nuclear substances must take place. Comments can be made until February 4, 2005. The proposed Regulatory Standard establishes concentration levels below which the specified substances may be disposed. The nuclear substances are divided into those of natural origin, artificial origin, mixtures of radionuclides, dissolved in liquids and items with surface contamination.

The proposed Regulatory Standard requires a licensee to develop a measurement strategy to ensure that radiological measurements are statistically representative of the substance being considered for disposal and specifies notification and reporting requirements.

For further information see:
www.nuclearsafety.gc.ca

Canada-Ontario Agreement on Environmental Assessment Co-operation

On November 1, 2004, the governments of Canada and Ontario signed the Canada-Ontario Agreement on Environmental Assessment Co-operation. The Agreement establishes administrative mechanisms and guides federal-provincial cooperation for the environmental assessment of projects subject to both the Canadian Environmental Assessment Act and the Ontario Environmental Assessment Act.

Projects that are subject to both federal and provincial environmental assessment legislation include municipal and provincial projects that require federal environmental approvals, permits, licenses, or involve federal funding, such as infrastructure projects. The Agreement maintains the current level of environmental standards and the legislative and decision-making responsibilities of both governments. While projects requiring both provincial and federal environmental assessment approvals still require separate approvals, decisions will be based on the same body of information and there will be an ability to make decisions concurrently. The Agreement provides guidelines to determine a “lead party” responsible for administration of each cooperative environmental assessment and sets out principles for carrying out such an assessment. The effect of the Agreement is to make the assessment process more timely and efficient.

The federal government currently has environmental assessment co-operation agreements with British Columbia, Alberta, Saskatchewan, Manitoba, Québec and Yukon.

For further information please see:
www.ceaa-acee.gc.ca.

Proposal to Revise the Canadian Drinking Water Guidelines for Arsenic

The Guidelines for Canadian Drinking Water Quality are established or revised as necessary by the Federal-Provincial Territorial Committee on Drinking Water (“CDW”). Arsenic has been re-assessed by Health Canada and the CDW. A revised guideline for arsenic is being proposed, which incorporates a maximum acceptable concentration for arsenic in drinking water supplies of 0.005 mg/l based on treatment achievability. The current guideline is 0.025 mg/l. The concentration of arsenic in drinking water representing an “essentially negligible” risk is 0.0004 mg/l, however this is below the practical quantification limit of 0.005 mg/l.

Consultation on the proposed revision to the Guideline for arsenic began on November 19, 2004, and will continue until May 17, 2005.

For further information please see:
www.ene.gov.on.ca/envregistry/024122ep.htm and
www.hc-sc.gc.ca/hecs-sesc/water/pdf/arsenic_drinking_water.pdf.

Approaches to Reducing On-site Residential Waste Combustion

On-site residential waste combustion is a non-point source of pollution typically practised in rural areas and small towns. Most of this activity is conducted using domestic incinerators (“burn barrels”) and backyard fire pits. In 2002, CCME commissioned a study to estimate Canadian dioxin and furan (PCDD/PCDF) emissions from this source. Based on this study, residential waste combustion in Canada was estimated to contribute from 20 to 40 grams per year of dioxin/furan TEQ to atmospheric emissions. This represents from 12 to 22 percent of the total Canadian dioxin/furan emissions to the atmosphere and, if unabated, the study concludes that on-site residential waste combustion could become the largest atmospheric sources of these compounds.

CCME commissioned the Study to:

• summarize the existing regulatory system in Canada (provincial and municipal) as it pertains to on-site residential waste combustion;
• summarize current initiatives in Canada and the United States that are designed to address this waste management practice;
• provide examples of approaches and tools employed by these initiatives, including legislation, bylaws, educational tools, etc.;
• analyze and assess selected initiatives regarding their effectiveness and applicability to a Canadian context;
• recommend strategies and options to reduce emissions in Canada.

The Study recommends community and government leadership initiatives, education and outreach program, appropriate waste management policies and adequate levels of service, and implementation of regulatory systems including local bylaws.

For more information please see:
www.ccme.ca.

ONTARIO

Environmental Commissioner of Ontario's Annual Report 2003-2004

Highlights and recommendations of the Environmental Commissioner of Ontario's (“ECO”) Annual Report 2003-2004 are set out below:

Ontario's forests: Ontario's forests are facing threats from private land owners, the forest industry and invasive species. Only small pockets of old growth forests, vital for their irreplaceable genetics and necessary to protect biodiversity, control soil erosion and flooding, remain. According to the ECO, these remaining vestiges of old growth continue to be harvested at an alarming rate because the Ministry of Natural Resources (“MNR”) has yet to implement rules governing how the forest industry should conserve old growth while harvesting. The Report also notes that changes to property tax laws made in 2002 have created a financial incentive for property owners to forest their land in order to have it assessed at the lower farmland rate.

Municipal sewer systems: The ECO Report states that there are over 12,000 industrial, commercial and institutional facilities that rely exclusively on municipal sewage systems to treat their waste. While Ontario's modern sewage treatment plants are fully capable of treating human waste, as they were designed to do, these systems are incapable of breaking down metals and persistent organics. As such, these toxic products are released untreated into Ontario's lakes and rivers. The Report also notes that the release of toxic effluent has increased since the mid 1990's when the Ministry of the Environment turned over the responsibility of sewer by-laws to municipalities.

Mercury levels on the rise: High levels of mercury are known to cause neurological and brain damage, loss of balance, paralysis and reduced reproductive success. Increasingly, high levels of mercury found in fish-eating mammals (humans included). The ECO Report maintains that the provincial government isn't taking the necessary steps to reduce the levels of mercury found in the environment and cites the Ontario Power Generation (“OPG”) case as an example. In that case despite independent reports that the OPG has emitted over 500 kg of mercury per year since 1999, the MOE decided not to pursue their investigation saying it would be difficult to quantify the exact amount of mercury the company was responsible for depositing in Ontario's waterbodies.

Ministry of the Environment's role in protecting the environment: The Ministry of the Environment (“MOE”) is responsible for enforcing the Environmental Assessment Act by setting conditions for projects that significantly affect the environment. The Report cites many examples where this ministry in particular has failed to live up to its mandate. Of note are the following:

• The MOE has withdrawn from its role of monitoring the way the MNR manages the forest industry thereby leading to the uncontrolled harvesting of old growth;
• The MOE approved a sewage project that would allow toxic mining effluent to be deposited into a waterway that, for the purpose of protecting certain endangered species, it is planning to designate as a provincial park in the near future;
• The MOE has refused to reconsider its approval for a landfill site granted six years ago despite technical studies revealing significant problems relating to runoff and leachate from the landfill.

The ECO was careful to point out that the majority of the issues covered in their annual report were first brought to their attention by Ontario residents who, through the use of the Environmental Bill of Rights, requested the investigation of governmental actions they believed were contravening environmental laws and regulations.

The following are the 2003/2004 ECO Recommendations:

• The ECO recommends that prescribed ministries review, update and strengthen their Statements of Environmental Values as soon as possible.

  Progress Report: Ministry Statements of Environmental Values, p. 8

• The ECO recommends that the MNR ensure the Managed Forest Tax Incentive Program does not provide a financial incentive to clear forested tracts of land in southern Ontario.

  Southern Ontario's Forests: Problems on the Landscape? p. 29

• The ECO recommends that the MOE act on its existing policies to ensure that municipal sewer use bylaws are in effect, reflect current environmental standards and are enforced across Ontario.

  Sewer Use Bylaws in Ontario, p. 35

• The ECO recommends that the MNR require the preparation and timely revision of management plans for all protected areas, including provisions for public consultation.

  Needed: Better Planning for Protected Areas, p. 41

• The ECO recommends that the MOE ensure that public consultation practices under the Environmental Assessment Act are consistent with the minimum rights enshrined in the Environmental Bill of Rights, particularly with regard to permits, licenses and approvals.

  EBR Rights Lost: Behind the Veil of Section 32, p. 52

• The ECO recommends that the MNR ensure that the aggregate industry operates in compliance with existing rules, and that the ministry demonstrate to the public that its compliance and enforcement programs for this industry are working effectively.

  Update: MNR's Compliance Program for Sand and Gravel Operations, p. 62

• The ECO recommends that the MOE review the need to amend the Environmental Assessment Act to provide a two-year statute of limitations for prosecutions.

  Who Enforces the Class EA? - The ORC Case, p. 70

• The ECO recommends that OMAF and the MOE work together to ensure that the Nutrient Management Act is prescribed under the EBR and that nutrient management plans and nutrient management strategies for large farms and biosolids are classified as instruments under the EBR.

  The Nutrient Management Regulation, p. 74

• The ECO recommends that the MOE amend MNR's Declaration Order for Forest Management to provide an opportunity for public response to MNR's Five-Year Environmental Assessment Report and to incorporate a requirement that MOE approve the Report.

  Environmental Assessment for Forest Management, p. 94

• The ECO recommends that the MNR revise the Old Growth Policy and Forest Management Planning Manual to incorporate forest management direction and requirements for conserving old growth forests.
  
  The ECO recommends that the MNR develop policies, plans and targets for conserving old growth forests in southern Ontario.

  Forest Management Policy for Old Growth, p. 99

• The ECO recommends that the MOE ensure that key provisions of the Wells Regulation are clear and enforceable, and that the ministry provide a plain language guide to the regulation for well installers and other practitioners.

  The Revised Water Wells Regulation, p. 110

• The ECO recommends that the MOE establish a comprehensive program to develop an understanding of the pathways, movement and fate of mercury in Ontario ecosystems.

  Ecosystem Impacts of Mercury, p. 116

• The ECO recommends that the MOE address the difficulties faced by members of the public when trying to access relevant environmental assessment approval documents.

  Highway Construction and Failings of the Environmental Assessment Process, p. 145

• The ECO recommends that the MOE adopt a Provincial Water Quality Objective for nitrate consistent with the Canadian Water Quality Guideline for this substance.

  Altering the Nitrogen Cycle: Massive Human Intervention in Nature, p. 186

10-YEAR REVIEW OF THE ENVIRONMENTAL BILL OF RIGHTS

The Environmental Commissioner of Ontario has completed a 10-year review of the Progress made under the Environmental Bill of Rights (“EBR”). The review is summarized in the following documents:

• ECO 10-Year Review of the EBR: Results of the Pre-Consultation Questionnaire
• The Environmental Bill of Rights at 10:The Potential for Reforming the Law
• EBR Law Reform Workshop - Meeting Report
• Looking Forward: the Environmental Bill of Rights

A brief summary of the important points raised during the review process is set out below:

1. Statements of Environmental Values (“SEVs”)

• Updating the principles in SEVs

The majority of the participants in the review process agreed that Statements of Environmental Values were the biggest failing of the EBR. New environmental principles such as the polluter-pays principle and the intergenerational equity principle, both recognized by the Supreme Court of Canada, weren't reflected in the EBR. It was suggested that these new principles be identified and listed in the purpose of the Act to replace the vague and outdated SEVs. In particular, participants suggested the implementation of a province-wide SEV that would transcend narrow ministry mandates and that would have “net environmental gain” as a main objective.

• Use of SEVs within the ministries

The review also brought to light a concern that ministries subject to the EBR were not using SEVs adequately in their decision-making. Currently, ministries experience no legal accountability if they fail to adhere to their SEVs. In contrast, the successful use of SEVs within private corporations was underscored. Companies set environmental objectives and goals, develop procedures to achieve them and train staff to be responsible for meeting and maintaining these environmental standards. It was suggested that the provisions dictating the scope and format of the SEVs be amended to indicated that ministries' SEVs must include clear goals and measurable targets and be promoted internally. Participants argued that ministries should be encouraged to report on their progress using SEVs as measure of their performance. It was further suggested that each ministry periodically review, republish and recommit to its SEV every five years. Currently, a ministry may amend its SEVs “from time to time.”

As instruments developed by the MOE are currently exempt from SEVs, it was suggested that the EBR be amended to extend the application of SEVs to all ministry decisions on instruments.

2. EBR

• Notices Exempt from posting on the Registry

The review process suggested that there exists a major problem with the notices that have been exempt from publication on the EBR Registry. Typically, when a ministry makes a decision that will impact the environment, they are required to post a notice on the registry. However, some decisions are exempt, leaving the public without the opportunity to comment or object to the decision. On a general level, it was suggested that ministries be required to post a list of the new decisions to which a posting exception has been applied. Such a list would include the type of exception being invoked and the justification for the exception. It was strongly felt that all decisions that significantly affected the environmental should be traceable.

On a more specific level, review participants noted that the public was often deprived of notices since ministries often don't post environmental decisions that have been approved under the parallel Environmental Assessment Act. The problem is that public participation rights on environmentally significant instruments issued through the EAA processes aren't consistently comparable to those provided by the EBR as the latter grants more rights. Although s. 32 of the EBR was specifically enacted to prevent the duplication of the public consultation process, it has been found that ministries apply this section too broadly. The end result is that the public is unable to participate in decisions significantly affecting Ontario's environment.

• Information contained on the Registry

The MOE has acknowledged that the EBR Registry is working with 10-year old technology and has begun a major re-engineering of the system and database. Apart from this admission, several suggestions concerning information contained on the registry were made. Participants suggested the following:

• Background information should be made available in the form of electronic attachments to Registry notices. The background information should include Certificates of Assessment and Regulatory Impact Statements (where applicable).
• Notices should provide better descriptions of the instruments they pertain to. In particular, clear and comprehensive descriptions of the pertinent proposals and explanations of the actual environmental consequences should be included in the notices.
• The public should have the right to respond to registry notices granted via electronic mail.
• A time limit be imposed within which the decision notices must be posted on the registry after decisions are implemented.
• The current 15-day public comment periods on significant proposals should be extended.
• The criteria defining whether a governmental decision is “environmentally significant,” and therefore posted on the Registry, needs to be clarified. This would diminish the discretion ministries have in deciding which proposals should be made public.

3. Application for Review

Section 61 of the EBR grants a resident of Ontario the right to ask the ECO to review any existing policy, Act, regulation or instrument of Ontario they feel should be amended, repealed or revoked in order to protect the environment.

It was agreed that the application for review provisions were beneficial since they required the government to expose the policy underlying certain laws and helped to raise the profile of certain issues. Participants suggested that the amount of information required up front in the application for review should be reduced and that the process be amended to accommodate a written “question and answer” format. Respondents to the questionnaire stated that ECO, not the MOE should determine if a review is warranted. It was also suggested by many that ECO have the ability to self-generate applications for review.

4. Application for investigation

Section 74 of the EBR allows for any two persons resident in Ontario who believe that a prescribed Act, regulation or instrument has been contravened to apply to ECO for an investigation of the alleged contravention by the appropriate minister.

The majority of the respondents to the questionnaire felt that the investigation process was too restrictive and that it required extensive resources to marshal the necessary evidence to have the application taken seriously. It was suggested, among other things, that this burden be lowered and that the ECO have more independence from the MOE when deciding whether or not to investigate.

5. Leave to appeal Ministry decisions

S. 38 of the EBR allows for any resident in Ontario to seek leave to appeal from a decision whether or not to implement a proposal for a Class I or II instrument.

Participants in the review process recognized that the 15-day period to submit an appeal after the ministry has posted its decision on the Registry was too short and suggested that it be extended to at least 20 days. Participants noted that quite often the Registry did not contain sufficient information regarding the proposal in question. As such, potential applicants weren't able to properly address the appeal application. It was also argued that the test for leave to appeal was too strict and that it should be based on the reasonableness of the specific issue rather than the reasonableness of the Director.

6. Litigation Rights (Legal Actions)

• Harm to a public resource

Under s. 84 of the EBR, Ontario residents can bring an action if they believe that a public resource is being harmed or will imminently be harmed. The ECO voiced its concern that the test for bringing an action of this type is too strict since the plaintiff has to show, on a balance of probabilities, that (i) the defendant contravened or will imminently contravene an Act, regulation or instrument and (ii) that significant harm to a resource has happened or will imminently be caused. ECO's concerns are reflected in the fact that in the ten years the EBR has been in place, only two s. 84 actions have been bought, neither of which proceeded to trial. Some argued that this was appropriate since s. 84 was meant to be a last resort. The Law Reform Committee suggested that the burden of proof be lowered to a prima facie case and that the definition of “public resource” be expanded to apply beyond public lands.

It was also suggested by many participants that the requirement that a potential plaintiff apply for an investigation prior to bringing an action (ss. 84(2)) acted as a barrier since in order for this hurdle to be overcome, a plaintiff has to prove that the Ministry's response to a request for investigation is unreasonable. It was suggested that it should be sufficient for the plaintiff to simply attempt engage the Ministry by means of an application for investigation.

• Interlocutory injunctions

Participants in the review process noted that while courts have the power to grant interlocutory injunctions in cases relating to harm to a public resource (see s. 92), this rarely happens since the common law test for the granting of an interlocutory injunction is too strict. It was suggested that the EBR be amended to modify the traditional test by lowering the threshold for granting an interlocutory injunction in a s. 84 action.

• Public nuisance and class actions

S. 103 allows for a person to bring an action for public nuisance causing environmental harm where a plaintiff experiences direct economic loss, without first obtaining consent from the Attorney General. Given the great expense in bringing an environmental action the Task Force had intended for s. 103 to be used in conjunction with the Class Proceedings Act. This hasn't happened. Participants suggested that either the Class Proceedings Act or s. 103 be amended to underscore the link between the two.

Removing the requirement that the plaintiff show personal harm was also suggested as an amendment to s. 103.

7. ECO's Role

• Expanding the ECO's powers

Most participants agreed that the creation of the ECO was one of the obvious successes of the EBR. There were many examples throughout the review documents where the public had been very pleased with the response and action they received from this governmental body. One of the main suggestions was that the ECO's mandate of review be broadened and that they have the power to require ministry staff to produce documents relevant to matters under their review. While the ECO has the power under s. 60 to employ an examination under oath, the ECO rarely uses this power since it's such a major undertaking. Participants also suggested that the Commissioner should be authorized to go to court on certain matters, undertake investigations or a review or even issue stop orders.

• ECO Compellability

It was noted by the Law Reform group that nothing in the EBR prevents the ECO from being compelled as a witness. Such a provision was held to be essential to the proper functioning of the ECO. It would ensure ECO's impartiality and the sharing of all relevant Ministry documents.

• Annual and Special Reports

Respondents to the questionnaire agreed that both the annual and special reports were comprehensive and useful. Participants agreed that the ECO used its powers appropriately to produce special reports that dealt with current environmental issues in a comprehensive fashion.

• Priority Issues

It was suggested that the ECO list their priorities and that water protection and the improvement of water quality top this list.

Funding for EBR Proceedings

In all four of the discussion papers, lack of participant funding for groups or individuals was noted, in view of the high cost of litigation and the decrease in recent years in financial support and resources for environmental litigation. It was suggested by many that in order for the EBR to be truly effective, public funding would have to be provided. In particular, participants held that funds to support the following actions/procedures should be instated under the EBR:

• Leave to Appeal: funding to assist successful leave to appeal applicants in appeal hearings;
• Action for Harm to a Public Resource: consider the establishment of a fund similar to the Law Society's Class Proceedings Fund to support actions for harm to a public resource;
• Public Nuisance Actions: provide for greater access to funding from the Class Proceedings Fund administered by the Law Society of Upper Canada to advance funds toward disbursements and indemnify a plaintiff ordered to pay a defendant's costs.

For further information please see:
www.eco.on.ca

PRE-TREATMENT REQUIREMENTS FOR HAZARDOUS WASTE PRIOR TO LAND DISPOSAL (LAND DISPOSAL RESTRICTIONS) -DRAFT REGULATION

The draft Regulation was discussed in the October Environmental Bulletin. The comment period has been extended from November 27, 2004 to December 31, 2004.

For further information please see:
www.ene.gov.on.ca/envregistry/023634ER.htm

PROPOSED AMENDMENTS TO DRINKING WATER SYSTEMS REGULATION (O. REG. 170/03)

The Drinking Water System Regulation was implemented in June, 2003 to address, in part, the recommendations of the O'Connor Commission. The proposed amendments provide for extensions to the treatment deadlines for rural municipalities and operators of non-municipal drinking water systems as follows:

• The treatment deadline is to be extended from December 31, 2004 for surface water systems and from December 31, 2005 for groundwater systems to July 1, 2006 for large municipal non-residential systems that do not serve a designated facility (i.e. large community centers and recreational facilities).
• The treatment deadline is to be extended from July 1, 2005 to December 31, 2006 for small municipal non-residential systems (i.e. small community centers and town halls) on surface water that do not serve a designated facility.
• Small municipal non-residential systems will also be allowed to post “this water has not been tested or treated for drinking” signs at taps for another year (until December 31, 2005).
• The treatment deadline is to be extended from December 31, 2004 for surface water systems and from December 31, 2005 for groundwater systems to July 1, 2006 for non-municipal year-round residential systems (i.e. mobile home parks, subdivisions, condos/apartments) and large non-municipal non-residential systems (i.e., hotels and resorts) that do not serve a designated facility.
• The treatment deadline is to be extended from July 1, 2005 to December 31, 2006 for non-municipal seasonable residential systems (i.e. trailer parks and campground) and small non-municipal non-residential systems (i.e. motels, resorts and restaurants) on surface water that do not serve a designated facility.

For further information please see:
www.ene.gov.on.ca/envregistry/023990ex.htm and
www.ene.gov.on.ca/envision/env_reg/er/documents/2004/RA04E0020.pdf

BILL 133 - COMMENT PERIOD EXTENDED

The tough and innovative amendments to Ontario environmental protection laws proposed by Bill 133 were discussed in detail in the October, 2004 Environmental Bulletin. The comment period was to expire on November 27, 2004. The comment period has been extended to January 7, 2005.

For further information please see:
www.ene.gov.on.ca/envregistry/024040ea.htm

RULES FOR STEWARDS WITH RESPECT TO PAYMENT OF FEES FOR BLUE BOX PROGRAM PLAN FOR 2005

This proposal was loaded on the Environmental Bill of Rights Registry on November 16, 2004. The comment period expires December 16, 2004.

The Schedule of Fees will apply to the 2005 calendar year. The proposed fees are based on a 2003 total Blue Box Program Plan net cost of $117.5 million plus an additional $5.5 million in administration and program activity costs. The fees proposed represent a substantial increase from those fees previously applicable.

For further information please see:
www.ene.gov.on.ca/envision/land/wda/bluebox/2005fees.pdf

RECENT CASES

SUTCLIFFE v. ONTARIO (MINISTER OF THE ENVIRONMENT)

On August 25, 2004, the Ontario Court of Appeal overturned a Divisional Court Ruling that had quashed the Minister of the Environment's approval of the Terms of Reference under the Environmental Assessment Act regarding the proposed expansion of the Richmond Landfill near Napanee. Applications for leave to appeal to the Supreme Court of Canada were filed on behalf of the Mohawks of the Bay of Quinte and the concerned residents of Tyendinaga Township on October 28, 2004.

For further information please see:
www.cela.ca

CANADIAN COMPANY SUED UNDER U.S. SUPERFUND LAW (UPDATE)

In the August 2004 issue of Gowlings Environmental Bulletin we reported on the case Pakootas v. Teck Cominco Metals Ltd. On November 8, 2004, the U.S. District Court for the Eastern District of Washington denied Teck Cominco's motion to dismiss a law suit filed under the citizen suit provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

It is alleged that pollution from Teck Cominco's lead-zinc smelter in Trail, British Columbia had entered the Columbia River and Lake Roosevelt in the State of Washington. The U.S. EPA had ordered the company to study the environmental affects of the slag and legal action was commenced against the company.

The Court determined that CERCLA could be applied outside the United States, stating:

“Because the fundamental purpose of CERCLA is to ensure the integrity of the domestic environment, we expect that Congress intended to proscribe conduct associated with the degradation of the environment, regardless of the location of the agents responsible for said conduct.”

Teck Cominco had argued that CERCLA provisions cannot be applied to a Canadian company concerning its actions occurring within Canada.

The legal claim is not directed at the Canadian smelter's discharge of hazardous substances into the Columbia River, but rather at the result of the disposal “manifested” at a U.S. “facility” contemplated in CERCLA.

For further information please see:
http://Yosemite.epa.gov/R10/CLEANUP.NSF/webpage/Upper+Columbia+river

TAKU RIVER TLINGIT FIRST NATION v. BRITISH COLUMBIA (PROJECT ASSESSMENT DIRECTOR), SUPREME COURT OF CANADA, (2004)

The Supreme Court of Canada reaffirmed that governments have a duty to consult with First Nations over land and resource use regardless of whether the specific claims have been proven. The decision emphasized the need to commit to meaningful consultation that makes it clear that the right to be consulted does not amount to a veto for First Nations. The Court also ruled that third parties do not have a legal duty to consult First Nations regarding resource development in areas subject to a land claim. In this particular case, the Court concluded that British Columbia did meet its obligation to consult and accommodate meaningfully in the process conducted pursuant to British Columbia's environmental assessment legislation.

For further information please see:
www.gov.bc.ca

WHAT'S HAPPENING?

Conference - What's New in Environmental Law & Regulation in Ontario - December 8, 2004

Harry Dahme chaired the second day of a conference “What's New in Environmental Law & Regulation in Ontario” on December 8, 2004 and presented two papers on “Recent Initiatives Regarding Hazardous Waste” and “Recent Developments in Environmental Assessments.”

Ontario Bar Association's Annual Institute - February 4, 2005

Katherine van Rensburg will be speaking at the Ontario Bar Association's Annual Institute on February 4, 2005. She will be speaking on the topic "Who's Liable? The Evolution of Ontario's Liability Regime for Contaminated Sites" in a program for non-environmental lawyers on Ontario's New Brownfields Law.

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