FEDERAL

• Amendments to the Ozone-Depleting Substances Regulations, 1998
• New Species Protected Under SARA
• Submission of Information Required Under CEPA, 1999
• Comments Sought on Risk Management Strategy
• Review of the Canada-US Great Lakes Water Quality Agreement
• MOUs Signed on Fish Habitat and Climate Change
• New Funds Available Through SDTC
  
  ALBERTA
  
• Regulation of E-Wastes


ONTARIO

• Bill 133 - Environmental Enforcement Statute Law Amendment Act


RECENT CASES

• Supreme Court Decision on Liability for Pre-Amalgamation Contamination: North Fraser Harbour Commission et al. v. Environmental Appeal Board et al.


WHAT'S NEW

• David Estrin Prize
• Brownfields Knowledge Workshop
• Gowlings' Breakfast Seminar Series — Occupational Hygiene and Air Emissions

FEDERAL

AMENDMENTS TO THE OZONE-DEPLETING SUBSTANCES REGULATIONS, 1998

Following pre-publication in April 2004 and a public comment period, the Ozone-Depleting Substances Regulations, 1998 have now been amended. The intention of the amendments is to ensure that users unable to switch to non-ozone-depleting substances have access to HCFCs, without undermining Canada's commitments under the Montreal Protocol on Substances that Deplete the Ozone Layer (“Montreal Protocol”). The amended regulations will allow the permanent transfer of consumption allowances between companies, replacing transfers that lapse annually. The amendments will also make changes to the sectoral distribution and calculation of consumption allowances, permit the retirement and redistribution of HCFC consumption allowances by Environment Canada, and prohibit the export of halons and CFCs other than for destruction or essential purposes.

For additional details see
http://canadagazette.gc.ca/partII/2004/20041229/pdf/g2-13826.pdf.

NEW SPECIES PROTECTED UNDER SARA

The Honourable Stéphane Dion, Minister of the Environment, announced on January 21, 2005 that 73 new species would be added to the schedule of species protected under the Species At Risk Act (“SARA”), out of a proposed list of 79. The additions are the first since 1993, and bring the total number of species protected to 306.

Of the six species not added, decisions on three—the polar bear, Northwestern grizzly bear and Western wolverine populations—have been deferred pending the outcome of consultations with the Nunavut Wildlife Management Board, expected to conclude by May 2005. The assessment of speckled dace has been returned to the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”) for further consideration. Finally, due to socio-economic considerations, Cultus Lake and Sakinaw Lake sockeye salmon will not be added to SARA's schedules, but rather will be protected through recovery plans directed by Fisheries and Oceans Canada.

For further information see
http://canadagazette.gc.ca/partII/2005/20050126/pdf/g2-13902.pdf

SUBMISSION OF INFORMATION REQUIRED UNDER CEPA, 1999

In October 2004, the Minister of the Environment proposed that perfluorooctane sulfonate (“PFOS”) along with its salts and precursors be considered “toxic” under the Canadian Environmental Protection Act, 1999 (“CEPA 1999”), and that consideration be given to virtual elimination. To support the development of potential risk management measures, the Minister is now requiring the submission of specified information related to PFOS use. Information must be submitted to Environmental Canada by April 7, 2005, by any person who manufactured, imported or exported > 100 kg of a PFOS substance listed in Schedule I, whether alone, or as part of a mixture in a concentration of at least 10 g / kg.

A similar notice was issued in January, in relation to perfluoroalkyl and fluoroalkyl substances. Persons who manufactured or imported > 100 kg of a substance described in Schedule I to the notice are required to submit specified information by April 28, 2005. Environment Canada is in the process of updating information originally collected in 2000, in order to better gauge industry efforts to phase-out and replace certain perfluoroalkyl substances.

For additional details on both notices, see
http://canadagazette.gc.ca/partI/2005/20050115/pdf/g1-13903.pdf

COMMENTS SOUGHT ON RISK MANAGEMENT STRATEGY

In January, Environment Canada released a proposed Risk Management Strategy for Pentachlorobenzene and Tetrachlorobenzenes. The strategy concerns around the addition of pentachlorobenzene and tetrachlorobenzene substances to the Prohibition of Certain Toxic Substances Regulations, 2005, to be pre-published in the summer of 2005 and come into effect in the summer of 2006. The strategy will also rely on existing efforts to reduce the instance of pentachlorobenzene and tetrachlorobenzene as a by-product or contaminant associated with barrel burning of household wastes, use and storage of PCB materials, wood preservation, certain pesticides, municipal incineration, and the operation of iron and steel plants. Public comments will be accepted until February 28, 2005.

The strategy can be reviewed at
http://www.ec.gc.ca/nopp/DOCS/consult/CBz/en/index.cfm

REVIEW OF THE CANADA-US GREAT LAKES WATER QUALITY AGREEMENT

Public comments are being solicited until March 8, 2005 by Environment Canada and the U.S. EPA, in relation to the process to be used to review the Canada-Great Lakes Water Quality Agreement. The key questions under consultation include how the public should be involved and what key issues should be included in the review; the review process itself is expected to take 12 to 18 months to complete.

MOUs SIGNED ON FISH HABITAT and CLIMATE CHANGE

On January 19, 2005, the federal government and Nova Scotia signed a Memorandum of Understanding (“MOU”) in relation to the management of fish habitat within Nova Scotia. Under the Constitution, the federal government and the provinces have overlapping authority over fish habitat management. This MOU, which follows similar deals between the federal government and BC, PEI and Manitoba, is designed to formalize procedures for the federal government and Nova Scotia to work together on fish habitat conservation, restoration and enhancement. It provides for, among other things, improved information sharing between the two levels of government, as well as the development, where possible, of harmonized policies, standards, guidelines and procedures.

The MOU is available on the Fisheries and Oceans Canada website at
www.dfo-mpo.gc.ca/canwaters-eauxcan/habitat/partners-partenaires/ns/ns_e.asp.

On January 10, 2005, the federal government and the Canadian Steel Producers Association signed an MOU on reducing greenhouse gas emissions. The parties agree to work together to develop emission targets for the steel industry in order to help Canada meet its obligations under the Kyoto Protocol. The government pledges to set emission reduction targets that do not impair the competitive position of the industry and do not result in a “disproportionate burden” on the industry. The parties also agree to support international efforts to develop cleaner steel-making technologies and processes. Although not a party to the MOU itself, the government of Ontario signed an annex to the MOU in which it expresses its support for many of the principles underlying the deal.

The MOU is available on the National Resources Canada website at
www.nrcan.gc.ca/media/newsreleases/2005/MOU_En_20050105.pdf.

NEW FUNDS AVAILABLE THROUGH SDTC

Sustainable Development Technology Canada (“SDTC”) is an arm's length, not-for-profit foundation created by the federal government to support the development and demonstration of clean technologies addressing climate change and cleaner air. SDTC has to date allocated $89 million to 46 projects, and has now launched its seventh round of funding. Applications will be accepted until March 16, 2005.

See www.sdtc.ca for more details.

ALBERTA

REGULATION OF E-WASTES

Alberta continues to lead the way in relation to the regulation of E-wastes. Beginning February 1, 2005, an environmental fee will be collected on every new television and computer purchased in the province. The new fees range from $5 for a new laptop to $45 for a 46-inch big-screen television, and are intended to cover the costs of collection, transport, and recycling of electronic materials. There are presently a total of 75 “e-collection sites” across the province, at which 190,000 televisions and 90,000 desktop computers were collected in 2004.

ONTARIO

BILL 133 - ENVIRONMENTAL ENFORCEMENT STATUTE LAW AMENDMENT ACT

Responding to concerns about the potential scope of Bill 133, the Ministry of the Environment has issued a press release assuring industry that the proposed legislation would apply only to 140 major industrial facilities, and not to municipalities or farms. The targeted facilities are now regulated under MISA, and include petroleum refining, iron and steel, mining, pulp and paper, metal mining and refining, inorganic chemicals and electric power generation. The MOE has also announced that it plans to consult industry over the coming weeks to address concerns in relation to the bill.

A set of MOE Q&A's on Bill 133 is available at
www.ene.gov.on.ca/envision/general/penalties/index.htm.

For a critical analysis see the detailed review of the draft legislation in our October 2004 Bulletin, at
http://www.gowlings.com/resources/enewsletters/environ/Htmfiles/.

RECENT CASES

SUPREME COURT DECISION ON LIABILITY FOR PRE-AMALGAMATION CONTAMINATION: NORTH FRASER HARBOUR COMMISSION et al. v. ENVIRONMENTAL APPEAL BOARD et al.

The Supreme Court of Canada has upheld the authority of a waste management manager to add B.C. Hydro to a Remediation Order under British Columbia's Waste Management Act (the “Act”) on account of the activities of one of its constituent companies pre-dating amalgamation.

In 1965, B.C. Electric amalgamated with two other entities to form B.C. Hydro. In 1920, B.C. Electric had contracted with a third party to supply coal tar from its gas plant in Vancouver for use in the third party's manufacture of roofing materials. These activities had continued until 1957. A waste management manager issued a remediation order against a number of parties requiring the remediation of the site that was contaminated by coal tar. At issue was whether B.C. Hydro could be named in a remediation order as a “responsible person” by reason of the historical activities of B.C. Electric.

The initial decision, by a manager under the Act, was that B.C. Hydro could not be named as a responsible person. This decision was overturned by the Environmental Appeal Board, whose decision was upheld on appeal to the British Columbia Supreme Court. On appeal to the B.C. Court of Appeal, B.C. Hydro argued that, given the unusual circumstances and terms of its amalgamation, it was subject only to those obligations of B.C. Electric that existed “immediately before the amalgamation” (these words appear in both the amalgamation agreement and an Order-in-Council approving the amalgamation).

The majority of the Court of Appeal found that the liabilities B.C. Hydro assumed were limited to those of B.C. Electric immediately before amalgamation. The amalgamation was not subject to the terms of the applicable Companies Act, but was governed by the British Columbia Hydro and Power Authority Act, 1964, which authorized the Authority to amalgamate “in any manner” with other corporations. The wording noted above was held to limit the liabilities assumed by the amalgamated entity.

In dissent Rowles, J.A. held that in an amalgamation, responsibility for all the past acts of the former entities are generally assumed by the subsumed within the new entity, and that if a limit on future liability was intended much clearer language would have been required. She also noted that it would be a “startling proposition” to suggest that an amalgamation agreement could unilaterally absolve the constituent parts of the enterprise of future obligations for their past actions, including removing tort liability.

The Supreme Court reversed the B.C. Court of Appeal, adopting in whole the dissenting reasons of Rowles, J.A. This case underlines that, as a general rule, amalgamated corporations, including those that operated public utilities and were subject to their own legislation, will be liable to claims for remediation in relation to historical environmental contamination predating their amalgamation.

WHAT'S NEW

DAVID ESTRIN PRIZE

In January David Estrin celebrated his 60th birthday and his 30th year in the private practice of Environmental Law. In honour of the event the Natural Resources, Environmental and Energy Section of the Canadian Bar Association has established the David Estrin Prize to be awarded annually for the best essay on Environmental, Energy or Natural Resources Law by a student registered in a Canadian Law School. Donations toward this prize can be made to the “Canadian Bar Foundation” at Canadian Bar Association, c/o Corinna Robitaille, 865 Carling Ave., Ste. 500, Ottawa, Ont. K1S 5S8.

BROWNFIELDS KNOWLEDGE WORKSHOP

Harry Dahme spoke in January on legal issues relating to brownfields at the Brownfields Knowledge Workshop hosted by the Canadian Brownfields Network, in North Bay. Harry will also be speaking at the Brownfields Knowledge Workshop to be held in Thunder Bay in March, while Jennifer Mesquita will speak at the Cornwall session, to be held on February 24, 2005.

GOWLINGS' BREAKFAST SEMINAR SERIES — OCCUPATIONAL HYGIENE AND AIR EMISSIONS

Gowlings' breakfast seminar series on air issues resumes on March 10, 2005, with a joint presentation on occupational hygiene and air emissions by Norm Keith, leader of Gowlings' Occupational Health & Safety Law practice, and Jacqueline Ammah, Occupational Hygienist and OHS specialist with AirZone One Inc. For more information please contact Jennifer Mesquita at jennifer.mesquita@gowlings.com.

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