December 2004 – Volume 1, Number 12
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| Environment @ Gowlings | Executive Editor Katherine van Rensburg
December 2004 – Volume 1, Number 12 |
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In this issue
RECENT CASES WHAT'S NEW FEDERALFIVE YEAR REVIEW OF CEPA 1999Environment Canada and Health Canada have prepared a paper to solicit public comment to prepare for the parliamentary review of CEPA 1999 that is required following the five year anniversary of the proclamation of the legislation. The Act is required to be referred to the House of Commons by March 31, 2005, with the review to begin some time thereafter. Public participation in the process is solicited through a questionnaire included in a Scoping Paper, with responses requested by email by February 11, 2005. The Scoping Paper can be found at http://www.ec.gc.ca/CEPARegistry/review/CR_participation/Default.cfm. Environment Canada and Health Canada will also be sponsoring regional, day-long public consultation workshops in six cities across Canada, beginning in late January. The workshops will be structured around the Scoping Paper. Toxic Substances and Municipal WastewaterEnvironment Canada has published a notice requiring the preparation and implementation of pollution prevention plans for inorganic chloramines and chlorinated wastewater effluents by any person who owns a wastewater system where the effluent released during either 2004 or 2005 from that system to surface water is greater than or equal to 5,000 cubic metres per day, based on an annual average and where the concentration of total residual chlorine in the effluent released to surface water exceeds 0.02 mg/L in any sample during either 2004 or 2005 based on representative sampling. The objective is to achieve and maintain a concentration of total residual chlorine that is less than or equal to 0.02 mg/L in the effluent released to surface water by December 15, 2009. The Minister requires pollution prevention plans, in compliance with the provisions of the notice, to be prepared and implementation initiated by June 15, 2007. Environment Canada has also published a Guideline for the release of ammonia dissolved in water found in wastewater effluents that applies to any wastewater system that has an effluent discharge flow to surface water that is greater than or equal to 5,000 cubic metres per day. The Guideline provides that persons who meet such criteria should take measures to ensure that ammonia deposited to surface water frequented by fish should not be acutely lethal and that wastewater systems should not release ammonia in quantities or concentrations resulting in a concentration of unionized ammonia greater than 0.019 mg/L in the aquatic environment to avoid chronic toxicity. The Notice and Guideline were published in the Canada Gazette Part I, Vol.138, No. 49 (December 4, 2004). OTHER POLLUTION PREVENTION PLANS REQUIREDEnvironment Canada has published a notice requiring the preparation and implementation of pollution prevention plans in respect of effluents from textile mills that use wet processing and nonylphenol (NP) and its ethoxylates (NPE), requiring plans to be prepared and implementation initiated by January 31, 2006, with full implementation no later than January 31, 2010. The requirement applies to persons who own or operate a textile mill that is involved in wet processing activities and discharges all or part of its effluent produced during such wet processes to an off-site wastewater treatment facility and has a daily effluent flow greater than 30 cubic metres based on average annual discharge at least one year between 1999 and 2003 where for each year the flow is calculated from the total annual effluent volume divided by the number of facility operating days. Environment Canada has published a notice requiring the preparation and implementation of pollution prevention plans in respect of NP and NPE contained in products, requiring plans to be prepared and implementation initiated by June 30, 2005, with full implementation no later than December 31, 2010. The requirement applies to persons who own or operate a facility that manufactures soap and cleaning products or processing aids used in textile wet processing or pulp and paper processing aids, or imports such products and purchases or otherwise acquires 2000 kg or more of NP and NPEs in at least one calendar year between January 1, 2003 and December 31, 2012. Notices requiring the pollution prevention plans to be prepared were published in the Canada Gazette Part I, Vol.138, No. 49 (December 4, 2004). POLLUTION WATCH REPORTEnvironmental Defence and the Canadian Environmental Law Association have released a report entitled “Shattering the Myth of Pollution Progress in Canada: A National Report”. The report is based on an analysis of NPRI data between 1995 and 2002, and concludes that releases and transfers of toxic chemicals continue to increase in Canada, with most (71%) of the releases to air. This substantial report contains a useful summary and analysis of the data and provides a number of recommendations with greater action to eliminate and avoid releases of chemicals, including a national action plan with numeric targets, the expansion of the NPRI program to include a greater number of chemicals and strengthening of pollution prevention strategies and legislation. For a copy of the report see:
ONTARIOPROPOSED AMENDMENTS TO EMISSIONS TRADING CODECertain changes have been proposed to the Ontario Emissions Trading Code, under Regulation 397/01. Under the Code, proponents who do not face compliance obligations under O.Reg 397/01 may apply to the Director to create ERCs based on reductions achieved for specific projects, if there is an appropriate Standard Method listed in the Code and the Director is satisfied that the reductions are real, surplus verifiable, unique and quantifiable. The proposed changes would revise the following Standard Methods:
The following are proposed new Standard Methods:
In addition to certain administrative amendments, other amendments to the Code will clarify how emission reductions associated with the Environmental Leaders Program are treated under the Code. The proposed revisions have been posted for comment for 60 days until February 12, 2005. See EBR Registry Number RA04E0017. WASTE DIVERSION ONTARIO TO ADDRESS WASTE ELECTRONIC AND ELECTRICAL EQUIPMENTUnder Regulation 393/04, filed on December 21, 2004, the Minister of the Environment Leona Dombrowsky has requested Waste Diversion Ontario to develop a waste diversion program for specific Waste Electronic and Electrical Equipment (“WEEE”), identified by the regulation as a designated waste. The Regulation is made under the Waste Diversion Act, 2002, that established Waste Diversion Ontario and authorized the Minister to request the development of waste diversion programs prescribed by regulation as a designated waste. WEEE includes a device that is waste, that required an electric current to operate and is listed in one of 7 schedules, which include household appliances, information technology equipment, telecommunications equipment, audio-visual equipment, toy, leisure equipment and sports equipment, electrical or electronic tools, and navigational, measuring, monitoring, medical or control instruments. Waste Diversion Ontario is required to submit a consultation plan to the Minister by May 1, 2005, and in so doing is to consider the Canada-Wide Principles for Electronics Product Stewardship as issued by the Canadian Council of Ministers of the Environment. The program is to include a plan to internalize all program costs, based on the results of a study of WEEE Management in Ontario. The study is a separate requirement of the Minster and is required to be submitted by June 1, 2005. The MOE news release reports that about 157,000 tonnes of e-waste went to landfill in Canada in 2002 and e-waste is predicted to grow to 206,000 tonnes by 2010. For more information see:
WASTE DIVERSION ONTARIO'S SCRAP TIRE DIVERSION PROGRAM PLANWaste Diversion Ontario was required to prepare a proposed waste diversion program for used tires. The proposed program has been posted for comment until February 14, 2005 at http://www.ene.gov.on.ca/envregistry/023913er.htm and would include, among other things, a $4.00 non-refundable Tire Stewardship Fee to be remitted by retailers for each new highway tire that is sold, a program to manage the registration and manifesting of scrap tire movement to eliminate illegal dumping, and a 5 year plan to eliminate the estimated 5-6 million stockpiled tires in Ontario through a process that could include Tire Derived Fuel application. The Ministry has prepared a questionnaire seeking public input to specific questions about the proposed program at
WATER TAKING AND TRANSFER REGULATIONOntario's new Water Taking and Transfer Regulation takes effect on January 1, 2005. The regulation sets out the factors the Ministry of the Environment must consider when assessing applications for Permits to Take Water, and prohibits new and expanded permits in high-use watersheds, except for certain types of takings which are exempt. The high-use water taking areas are the Big Creek watershed in the Long Point area, where prohibitions will apply throughout the year, and the Lower Grand River watershed and the Niagara Peninsula watershed where new or expanded takings that remove water from these watersheds will not be permitted in late summer when water flow is low. The new regulation also provides for the reporting of water takings by permit holders on an annual basis. The monitoring and reporting requirement will be phased in. Municipal drinking water systems, major industrial dischargers and users that remove water from the watershed must start monitoring on July 1, 2005 and reporting by March 31, 2006. See http://ene.gov.on.ca/envision/env_reg/ebr/english/index.htm. AMENDMENTS TO DRINKING WATER SYSTEMS REGULATIONOn December 17, 2004, Ontario Regulation 170/03 was amended to extend deadlines for installing new water treatment equipment for small and rural drinking water systems. For the specific changes, see the November 2004 issue of Environment@Gowlings that reported on the proposed amendment when it was posted on the Environmental Registry. EXPERTS' REPORTS RELEASED ON PROTECTION OF DRINKING WATER SOURCESThe reports of two expert committees appointed by the Minister of the Environment last year have been released. The reports contain a total of 261 recommendations on the best ways to develop and implement a source protection plan for Ontario. The Implementation Committee's report makes recommendations on tools and approaches to implement protection plans, including funding methods. The Technical Experts Committee's report makes recommendations on how to identify and effectively address possible threats to drinking water. The reports will be reviewed with a view to incorporating the advice for the implementation aspects of comprehensive source protection legislation to be introduced in the spring of 2005. The reports have been posted for public comment until February 14, 2005 on the Environmental Registry. See http://www.ene.gov.on.ca/envision/env_reg/ebr/english/index.htm. RECENT CASESKoebel Brothers SentencedOn December 20, 2004, Mr. Justice Bruce Durno of the Ontario Superior Court of Justice sentenced Stan and Frank Koebel on one count each of committing a common nuisance under the Criminal Code, in connection with their acts and omissions contributing to the Walkerton contaminated water tragedy. Both individuals had responsible positions with the Walkerton Public Utilities Commission during the 2000 e-coli outbreak that resulted in widespread illness and seven deaths. The brothers had supplied Walkerton with unchlorinated water for 12 days, failed to properly monitor, sample and test the water supply, and failed to keep accurate records of their activities. Stan Koebel received a prison term of one year, while Frank Koebel received a conditional sentence of nine months. The Court noted that the community had suffered greatly from the tragedy, but that the Koebels were genuinely remorseful, had entered guilty pleas, and had co-operated fully with the O'Connor Inquiry. WHAT'S NEWCELEBRATING DAVID ESTRIN On January 18th David Estrin will be celebrating his 60th birthday and 30th year in the private practice of environmental law. David is the founding editor of the Canadian Environmental Law Reports and has authored/co-authored a number of leading text books on environmental law, including Business Guide to Environmental Law, Environment on Trial, and Handle With Caution. He has lectured at numerous law schools and for thirteen years was Associate Professor (part-time) in the Faculty of Environmental Studies, University of Waterloo. He has also set leading precedents before Ontario courts and tribunals as well as the Federal court. We congratulate David on his significant contributions to the development and practice of environmental law in Canada! REPORT - “LEGAL ISSUES IN REVIEW” BY GOWLINGS' ENVIRONMENTAL NATIONAL PRACTICE GROUP Gowlings' Environmental National Practice Group has published the second edition of “Legal Issues in Review,” a comprehensive inventory of amendments to environmental legislation in every Canadian province and territory, along with federal developments, from January 2003 to July 2004. The article was prepared for the eleventh edition of the Canadian Environmental Directory (“CED”), and can be accessed online at legalIssueInReview_2003_2004.pdf. The CED is an excellent resource for environmental managers, containing a chronology of environmental developments from July 2003 to July 2004, conference listings through 2008, listings for environmental contacts at all levels of government including environmental trade representatives abroad, private organizations and associations, a directory of products and services, and over 1,000 specialized environmental libraries and resource centres. For further information on the CED consult www.micromedia.ca. Thanks to Jennifer Mesquita for once again leading this project at Gowlings. SEMINAR - HEALTH, SAFETY, ENVIRONMENT AND REGULATORY REVIEW - FEBRUARY 16, 2005 Mark Madras will be speaking at the Health, Safety, Environment and Regulatory Review Seminar conducted by Fielding Chemical Technologies on February 16, 2005 at the Credit Valley Golf and Country Club in Mississauga. The topic of Mark's presentation will be “What's New in Due Diligence in Ontario - The Practical Significance of Bill 133.” For more information on the program and registration contact Marlene McCallum, Fielding Chemical Technologies, Tel:(905)281-4632, Fax:905)279-4130,or e-mail: marlenem@fieldchem.com. CONFERENCE - ENVIRONMENTAL LAW AND COMPLIANCE IN ONTARIO - FEBRUARY 17, 2005 Katherine van Rensburg will be speaking at Insight's 2nd annual “Environmental Law and Compliance in Ontario” conference on February 17, 2005 in Toronto. Katherine's topic is “What's New in Federal and Provincial Enforcement?,” and she will be sharing the podium with Jamie Flagel of the Ministry of the Environment and John Meaney of Environment Canada. For more information or to register for the two day conference, see www.insightinfo.com. A 10% discount is available for clients of Gowlings for this event. Katherine's article “Deconstructing Tridan: A Litigator's Perspective” has been published in the Journal of Environmental Law and Practice at 15 J.E.L.P. 85. |
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| Gowlings is an internationally acknowledged leader in environmental law. Professionals in our Environmental Group are recognized in the Lexpert/American Lawyer Media 2004 Guide to the 500 Leading Lawyers in Canada and the Lexpert Legal Directory. They're also included in Euromoney's Guide to the World's Leading Experts (Canada). Gowlings is further recognized in the areas of intellectual property, technology, business law and advocacy. | ||||||||||
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