Some consultants are making a serious error in their Records of Site Condition. According to O.Reg. 153/04, every Qualified Person is required to check the ‘municipal official plan’ to identify ‘areas of natural significance’. Some, however, are forgetting to check the Regional Official Plan – Regions are municipalities! These kinds of errors can make a Record of Site Condition contain “false or misleading” information or certification, and therefore can rob an RSC of all value to a property owner.

©2010 Environmental Law and Litigation. All Rights Reserved.

The Ontario Power Authority has just announced the first group of contracts to buy renewable energy electricity at premium Feed in Tariff (FIT) prices, under the Green Energy Act. These contracts have been awarded for projects that do not require upgrades to the electrical transmission and distribution grid, and therefore can be built quickly without significant public investment.510 projects were approved, from 10 kilowatts to 500 kilowatts, with a total generating capacity of 112 megawatts.
About 95 percent of the projects are for solar generation, notably 136 for rooftops on Loblaw grocery stores, and dozens of schools. Rooftop solar projects will not require renewable energy approvals from the Ministry of the Environment. Loblaws will initially build four solar roofs, and gradually roll out the others in phases. Other major retailers are also interested. The remaining projects are biogas (20), water (4), onshore wind (3) and biomass (1).
The list of lucky winners is available here.

The OPA press release is available here.

Exciting times for renewable energy!

©2010 Environmental Law and Litigation. All Rights Reserved.

Last week, insurance representatives told the Ontario Bar Association that environmental cleanup insurance has become much less expensive, perhaps 1 cent per square foot per year for large property portfolios. The available coverages have also expanded.
This is good news. Environmental insurance is appealling, but has usually been too expensive for smaller deals and single sites of almost any size. Perhaps the new pricing will now bring it into reach.

©2010 Environmental Law and Litigation. All Rights Reserved.

Ontario’s proposed Framework for approval reform should get strong business support. But an unadvertised detail on page 21, not mentioned in any of the summaries, may give some organizations concern:

the Ministry is proposing changes that would allow the Ministry to assign responsibility for cleanup and costs to a parent company where financial assurance was absent or inadequate.

Should parent companies pay?

The current system of financial assurance has not worked very well.
For decades, Ontario taxpayers have been picking up the bill for environmental cleanups where polluters put up too little, or no financial assurance. In case after case, the ministry’s own calculations of how much financial assurances necessary have proved to be inadequate. In the Detox decision mentioned last week, Ministry witnesses admitted that, in the 30 cases where they have called on financial assurance, it has never once been sufficient. In General Chemical, the Ministry had approved financial assurance of $3.5 million just before the company restructured, abandoning a lagoon that would cost at least $12 million more. The Ministry settled its claim against the officers and directors for several million dollars, but that still left the taxpayer with a big bill.

There have been a few cases where cleanup liability has successfully been imposed on parent companies, but this has always been difficult. Now, the Ministry wants to make it the norm. This should add some surprising complications to a wide variety of transactions.

©2010 Environmental Law and Litigation. All Rights Reserved.

Canadian pride in our “green Olympics” is about to be translated into a standard for sustainable events: Z2010. The Canadian Standards Association worked unofficially with VANOC’s Corporate Sustainability Office to develop the standard in record time, and to learn from its experience in putting on the Vancouver Olympics.

VANOC developed an impressive Sustainability Management and Reporting System, a first for the Olympics/ ParaOlympic games. It integrated components from several international standards, including the AA1000 standard on public engagement; an environmental management system based on ISO 14001; and the Global Reporting Initiative for performance reporting on environmental, social and economic issues. VANOC’s final report on the success of its sustainable event will be released later this year. Even the gold, silver and bronze medals contained precious metals recovered from discarded electronics.

The CSA Sustainable Sport and Event Toolkit builds on this foundation. It has been designed for events of all sizes, from large sporting events, such as Toronto’s 2015 Pan Am Games, to concerts, conferences and green weddings. It is organized into eight main chapters, addressing economic, social and environmental sustainability. Key issues include food, energy, transportation, accommodation, site selection, communications, education and engagement. For transparency, sustainability objectives and performance indicators should be available to the public. The Global Reporting Initiative will release related guidance, on how to report on sustainable events, within two years.

Z2010 will be released to the public soon, and should quickly become a benchmark for any event claiming to be “green”. If you go to an event, ask for it.

©2010 Environmental Law and Litigation. All Rights Reserved.

Federal Conservatives have often signalled their reservations about environmental assessment and approvals, and their impact on slowing favoured projects. They already suspended much federal EA for infrastructure stimulus projects. Now the federal Speech from the Throne and the Budget show they will do something similar for resource development:

According to the Speech:

To support responsible development of Canada’s energy and mineral resources, our Government will untangle the daunting maze of regulations that needlessly complicates project approvals, replacing it with simpler, clearer processes that offer improved environmental protection and greater certainty to industry…

Our Government will reform the northern regulatory regime to ensure that the region’s resource potential can be developed where commercially viable while ensuring a better process for protecting our environment.

These promises are supported by a recent report commissioned by the Residential and Civil Construction Alliance on how EA drives up the cost of municipal infrastructure. According to the Study:

The lengthy time frames and higher costs to comply with the Municipal Class EA process are not providing additional environmental or other benefits.

The first concrete proof of the change came in yesterday’s budget. Approvals of major energy projects will no longer be controlled by the Canadian Environmental Assessment Agency:

The Government is taking steps in Budget 2010 to further improve the regulatory review process for large energy projects. Responsibility for conducting environmental assessments for energy projects will be delegated from the Canadian Environmental Assessment Agency to the National Energy Board and the Canadian Nuclear Safety Commission for projects falling under their respective areas of expertise. Participant funding programs will be established by each agency to ensure the timely and meaningful engagement of the public, stakeholders and Aboriginal peoples in the review of major energy projects.

This change will greatly reduce the potential for environmental assessment to block new energy projects, such as new nuclear, oil sands, or pipelines.

The only other reference to the environment, in the Speech, was an offsetting promise that follows existing Conservative priorities:

our Government will bolster its Action Plan on Clean Water. And it will build on the creation of more than 85,000 square kilometres of national parks and marine conservation areas as part of its national conservation plan.

©2010 Environmental Law and Litigation. All Rights Reserved.

Need a renewable energy approval under the Environmental Protection Act for a wind, solar or biomass project? Six new draft technical guidance documents have been released for three months’ public comment,  to May 30, 2010. See EBR Registry Number 010-9235. Applicants should follow the guidance, even before it is formally adopted, and opponents will study the bulletins carefully, looking for support for their concerns.

The draft technical bulletins are: Technical Bulletin #1 Guidance for preparing the Project Description Report as part of an application under O.Reg.359/09
Technical Bulletin #2 Guidance for preparing the Design and Operations Report as part of an application under O.Reg.359/09
Technical Bulletin #3 Guidance for preparing the Construction Plan Report as part of an application under O.Reg.359/09
Technical Bulletin #4 Guidance for preparing the Decommissioning Plan Report as part of an application under O.Reg.359/09
Technical Bulletin #5 Guidance for preparing the Consultation Report as part of an application under O.Reg.359/09
Technical Bulletin #6 Required Setbacks for Wind Turbines under O.Reg.359/09

©2010 Environmental Law and Litigation. All Rights Reserved.

Environmental approvals in Ontario are still too slow, too opaque, and too hostile to innovative technologies. In 2007, the Environmental Commissioner noted that our cumbersome environmental approval process was hurting both the economy and our environment; business has been complaining about this for years. Finally, Ontario is going to do something about it.

The Ontario Ministry of the Environment has released its long-awaited “Proposed Framework for Modernizing Environmental Approvals” on the Environmental Registry. (Search number 010-9143) for one month of public comment. The Framework is a white paper, sketching out a plan

for major changes to the Environmental Protection Act, the Ontario Water Resources Act, and other environmental statutes that require individuals and businesses to get permits.

The basic elements of the Framework should not be controversial, and are likely to have strong business support, although some of the details will cause concern. Fundamentally, the Framework will set different rules for low risk activities than for high-risk ones, starting in late 2012. All existing approvals will eventually be transitioned into the new system.

For Low Risk Activities: Permit by rule

Ontario now issues about 6000 environmental permits a year, for everything from huge factories and major landfills to minor upgrades in a restaurant kitchen exhaust. Many, perhaps half of these, are for low risk, routine, predictable activities where individualized Ministry review provides little benefit. These activities would cease to require air, water, and waste certificates of approval.

Instead, the organization would “register” all its lower risk activities on a public website. The registration would include key details about each activity, depending on its perceived risk; most of these details would be available to the public. Technical documents may have to be submitted, certified by a person with relevant technical knowledge.

An “accountable person”, the highest-ranking employee at the facility with management responsibilities, would have to periodically declare that the registration is accurate and complete, and would be responsible for ensuring that the organization complies with it.

Registration would be effective immediately, and would trigger the application of standard rules. The organization may be required to pay fees, file financial assurance, file reports, ensure training, operate within defined parameters, monitor emissions, etc. — all the terms that can now be imposed as a condition of a certificate of approval.

For High Risk Activities: certificates of approval that are more demanding and more public

Higher risk activities will still need individual certificates of approval. However, these approvals will be site-wide and multimedia, covering air, waste, and water in a single approval. In some cases, multiple sites will be covered by a single approval. These approvals may allow operational flexibility, as in a current “comprehensive approval”, but may have mandatory periodic updates. Under today’s system, some old approvals can continue in effect for decades without review.

Proposed regulations would set mandatory submission and quality requirements, since the Ministry now receives a large number of poor quality or incomplete applications. There would be an incentive to file applications online; for example, they may benefit from quicker service guarantees, promises to process the application within a specified time.

Applications will have to be signed off, both by an appropriate technical expert, and by the applicant’s “accountable person”. Most portions of an application, and of the resulting approval, will be accessible to the public.

For most businesses that need new or amended approvals, these changes probably cannot come quickly enough. But the transition period could be painful. Comments can be submitted until April 2.

©2010 Environmental Law and Litigation. All Rights Reserved.

How do lawyers use Expert Witnesses in Environmental Litigation? Here’s an outline from one of Dianne’s seminars:

A.   Picking Your Expert

1.     What kind of expert do you need?

2.     Which expert should you choose?

3.     Which expert correspondence is privileged?

4.     Is it “science”?

5.     Is there a conflict of interest?

B.    Preparation

1.     How do you teach an expert to testify?

2.  How do you deal with weaknesses?

3.  How do you get an expert to speak plain English?

4.  How can you help your expert survive cross-ex?

5.  How well does the expert need to know the legal case?

C.   Direct-Examination

1.     How do you “qualify” an expert?

2.     What are the rules for giving opinion evidence?

3.     When are you required to use a hypothetical?

4.   How do you use visual aids?

5.  How do you survive re-examination?

D.   Attacking the Opposing Expert

1.     When should you attack an expert’s qualifications?

2.     How can you use your expert to help you cross-examine the other party’s expert?

3.     How can the lawyer prepare for cross-ex?

4.     How do you deal with hostile witnesses?

5.     How do you attack hypotheticals?

E.    Impact of Expert Evidence

1. What can the court do with the expert evidence?

2.     Does the court have to accept uncontradicted evidence?

3.     What is the difference between admissibility and weight?

4.     What will the court do with expert evidence relating to the ultimate issue?

5.     Did the judge understand any of it???

The Use of Expert Witnesses in Environmental Litigation

Questions and Answers

A.   Picking Your Expert

1.   What kind of expert do you need?

The expert’s area of expertise must relate directly to the technical issues in the lawsuit. He or she should know enough about the specific issue, however, the area of expertise must be sufficiently broad because an expert may not testify beyond his/her area of expertise.

2.     Which expert should you choose?

There are a number of important qualifications:

a.     education, technical background, and work experience,

b.     unimpeachable reputation (i.e., someone who is well respected in the field and cannot be easily attacked),

c.     strong communication skills – the expert must be able to take something complicated and make it comprehensible.

3.  Which expert correspondence is privileged?

4.     Is it “science”?

How do you determine if the “expert’s” field of expertise is admissible scientific evidence or inadmissible “junk science”?  Unlike in the U.S., Canadian courts have not tried to formulate a single rule for admissibility of new scientific evidence. Rather, the SCC has adopted a flexible approach to the admissibility of novel scientific evidence. Essentially, it asks if it is reliable and necessary to assist the trier of fact.  Note: the closer the evidence approaches the ultimate issue, the stricter the application of this principle.

See: R. v. Mohan, [1994] 2 S.C.R. 9

5.     Is there a conflict of interest?

B.    Preparation

1.  How do you teach an expert to testify?

Giving an opinion in a courtroom is very different than giving an opinion elsewhere. Explain to experts some of the differences:

• the difference between scientific proof and legal proof;
• the difference between scientific and legal causation;

2.  How do you deal with weaknesses?

Encourage the expert to be honest with you so that you can discover any weaknesses in advance and develop an approach for dealing with it.

Determine in advance if the expert is relying on accepted scientific procedures, industry practices and techniques. If not, find out why.

3.  How do you get an expert to speak plain English?

Work with the expert in advance to encourage him or her to be as clear and simple as possible, to use basic language, explain basic principles, avoid jargon and technical explanations. Encourage them to use analogies or examples, use pictures and demonstrative evidence.

4.  How can you help your expert survive cross-ex?

Experts are accustomed to being respected for their opinion and treated with deference.  In cross-examination, the other side will try to chip away at your expert’s evidence. Practice with him or her before and work with the expert to help him or her avoid damaging his or her own evidence.  Teach them to: listen very carefully to the question asked; to be sure that they understand it before answering; to ask for clarification if the question is unclear; to answer only the question asked, and never to volunteer further information; to stay calm; and to stick to his or her area of expertise.

5. How well does the expert need to know the legal case?

The expert needs to know more than just his or her part of the case.  The expert needs to know and understand the entire case, including all expert reports, including the other party’s expert reports.

C.   Direct-Examination

1.  How do you “qualify” an expert?

You must demonstrate that the expert has special knowledge or experience in the area in which he/she will be testifying.   It may be through education and/or experience. You must qualify the expert for everything that she/he will be testifying on, otherwise, the other party may object if the expert testifies on a matter beyond the scope of expertise for which he/she was qualified.

See: Sopinka, John, et al, The Law of Evidence in Canada, 2^nd Edition, Buttersworth, 1999, “The Opinion of Experts”.

2.  What are the rules for giving opinion evidence?

In addition to providing basic information of scientific and technical issues, an expert is allowed to state his/her opinions and conclusions.  To give an opinion the expert must meet the test set out in R. v. Mohan [1994] 2 S.C.R. 9:

(1)  the evidence is relevant to some issue in the case;

(2)  the evidence is necessary to assist the judge (i.e., the information to be provided is likely outside the experience or knowledge of the judge);

(3)  the evidence does not violate the exclusionary rule; and

(4)  the witness is a properly qualified expert.

This test is relatively straight forward if it is a traditional science (e.g. chemistry, physics), but more complex if it involves a possible “junk science”.

3. When are you required to use a hypothetical?

If the expert lacks personal knowledge of the matters in issues or the opinion is predicated on facts that are in dispute, the opinion may be elicited only through hypothetical questions.  Hypotheticals need not be used when the expert has first hand knowledge of the facts or when the factual basis of the expert’s opinion is not in dispute.

Rationale: if the opinion is predicated on facts that are in dispute, absent a hypothetical, the expert would be required to weigh evidence, access credibility and form an opinion, which is the job of the judge.

The hypothetical put to the expert must be clear, simple, and uncontradictory, with sufficient assumed facts to enable the witness to give an answer.

See: Bleta v. R. [1964] S.C.R. 561 and A. Maloney, “Expert Evidence”, Law Society of Upper Canada Special Lectures (Toronto, Deboo, 1969).

4.  How do you use visual aids?

5.  How do you survive re-examination?

D.   Attacking the Opposing Expert

1.  When should you attack an expert’s qualifications?

If you do not believe than an expert is qualified, you should object right after the expert is “qualified” by his or her counsel; otherwise, you may not object as to the expert’s qualification at a later time.  Any questions of qualification during cross-examination will only speak to weight, not the admissibility of his/her testimony.   You will also want to object to any statement made by an expert that is beyond the scope of expertise on which the expert was qualified.

2.  How can you use your expert to help you cross-examine the other party’s expert?

Provide the other party’s expert’s report or affidavit to your expert to review and comment and criticize.  Use your expert to help you phrase technical questions to ask the other side’s experts.

3.     How can the lawyer prepare for cross-ex?

The lawyer needs to be quite familiar with the experts subject area.  The lawyer will have to understand the experts report and should assistance for his or her own experts.  The lawyer will need to be able to ask intelligent follow-up questions on both direct and cross-examination.  The lawyer will also need to know the area well enough to know which questions not to ask.

4.  How do you deal with hostile witnesses?

5.  How do you attack hypotheticals?

E.    Impact of Expert Evidence

1. What can the court do with the expert evidence?

2.   Does the court have to accept uncontradicted evidence?

3.  What is the difference between admissibility and weight?

See: Sopinka, John, et al, The Law of Evidence in Canada, 2^nd Edition, Buttersworth, 1999, “The Opinion of Experts”.

4.     What will the court do with expert evidence relating to the “ultimate issue”?

There is no longer an absolute rule barring a witness from testifying on the very point or issue the court has to decide, but the court has the discretion to reject such testimony.

See: Graat v. R. [1982] 2 S.C.R. 819.

5.  Did the judge understand any of it???

See more at http://www.economica.ca/ew04_2p2.htm.

©2010 Environmental Law and Litigation. All Rights Reserved.

A recurring problem in Ministry of the Environment instruments is the ministry’s demand for financial assurance that duplicates other financial instruments. A classic example is a condominium, which is required to have a capital fund to cover future expenses, such as most obligations under a Risk Management Plan. The Ministry may require a condominium to duplicate this same capital allowance by way of FA.
A similar example occurred in Detox Environmental Ltd. v. Director, Ministry of the Environment, where Detox appealed the Ministry demand for $100,000 in financial assurance for transportation accidents involving PCBs.As Detox pointed out, it holds $5 million of vehicle insurance, to cover precisely the same sort of accidents. Detox also noted that the MOE’s standard amount, $100,000, was almost certainly inadequate. The Environmental Review Tribunal said that Detox made some good points, and sent the matter back to the MOE for reconsideration.

Here are some more details:

Appeal filed January 9, 2009 for a hearing before the ERT pursuant to section 139 of the Environment Protection Act, re Amended Provisional CofA (Waste Management System), # A840849 issued by the Director of the MOE, on Dec. 16, 2008.

Detox appealed the approval of the application because the Amended Provisional CofA issued by Director of the MOE requires Detox to maintain $100,000 in cash, bond or irrevocable letter of credit for its PCB waste management system.

Detox did not appeal the FA requirement for its waste disposal site: $382.218.  Rather, Detox asked that its $5 million vehicle insurance policy should count as its financial assurance.

MOE Financial Assurance Program Support Coordinator Mary Ouroumis testified that insurance is a non-standard method, unless a compelling case is made by appellant (s. 6.6.2, FA Guideline).*  Insurance policies should only be considered for facilities, et al with plans for less than four years in scope, but are not appropriate for landfills and long-term disposal facilities where costs are certain to be incurred.(S. 7.4.9 – FA Guidelines)

She also stated that vehicular insurance was not preferable because the MOE would have to review the insurance policy and procedures.

However, Ouroumis admitted that there are systemic problems in the MOE’s requirements,  especially a gap between the $100,000 financial assurance requirement for PCB and biomedical waste haulage and the amount actually needed to clean up spills this is an area where.  Of the 15 cases where the MOE had to use financial assurance, the $100,000 was never sufficient.

Decision:

The Tribunal allows Detox’s  appeal in part, by amending the first sentence of Condition 25(a)  of the CofA as follows:

“The Company shall maintain financial assurances in a form that is acceptable under the MOE’s Guideline F-15, or a successor document, in the amount of $100,000 in a form satisfactory to the MOE Director for PCB waste and PCB related waste management system.”

1. Tribunal also stated Detox can put forward a non-standard form of financial assurance if the appropriate legal and financial reviews show that the insurance is sufficient in amount and accessibility to clean up spills.  It also urged Detox to bring more detail to the process than it did at the hearing; insurance could be considered acceptable in appropriate circumstances.  The Tribunal also hoped a proper review of the MOE’s financial assurance programs will prevent further such appeals in the future.

©2010 Environmental Law and Litigation. All Rights Reserved.

An enthusiastic study on Water Quality Trading recommends using “cap and trade” to control phosphorus levels in the Lake Simcoe watershed.

Lake Simcoe needs a major reduction in phosphorus loadings, even as population and climate change increase. The Lake Simcoe Protection Plan commits the province to complete a Water Quality Trading Feasibility Study under subsection 75 (1.9) of the Ontario Water Resources Act (OWRA), within one year. The Ministry retained a team, led by XCG Consultants Ltd, to undertake the study, which is out for consultation until April 3.

Water quality trading uses economic instruments to reduce the cost of environmental improvements.  In essence, it is a form of cap and trade for water pollution.  In the Lake Simcoe watershed,  farmers can often reduce phosphorus discharges much less expensively than most sewage treatment plants can. The idea is to allow point sources, such as municipal sewage treatment plants, to offset their own phosphorus emissions by paying farmers (and perhaps others) to reduce theirs.
Water quality trading can provide an incentive for non-point source contributors (such as farmers) to reduce their phosphorus loadings. It can also reward farmers for the ecological services they provide. Critics argue that it can be costly to administer, that there may not be enough trading to make a difference, and that it is difficult to verify the results.

XCG concludes that a phosphorous trading program in the Lake Simcoe watershed is feasible, and could have a meaningful impact on the Lake. I expect to see the province adopt the concept, perhaps before the next election.

©2010 Environmental Law and Litigation. All Rights Reserved.

Anyone elected to municipal council this fall, October 25, 2010, will still be in office on January 1, 2013, when section 19 of the Safe Drinking Water Act comes into effect. This is the unprecedented duty of care that requires municipal councillors and staff to “act honestly, competently and with integrity, with a view to ensuring the protection and safety” of drinking water users. Municipal councillors and their staff should worry: what does this new obligation add to the obligations they already have?

Dianne got a standing ovation for her Safe Drinking Water Act presentation on the issue to the Ontario Good Roads/ Rural Ontario Municipal Association on February 23.

©2010 Environmental Law and Litigation. All Rights Reserved.

Is a site really clean? Can you trust a Record of Site Condition?

We keep finding examples of why the Ministry of the Environment had to tighten the obligations of Qualified Persons in Regulation 153/04, the regulation that governs contaminated sites. The regulation requires a Qualified Person to certify the highest known concentrations of contaminants on a site in each Record of Site Condition. We discovered this month that even well-known consulting firms have certified questionable RSCs. An RSC that contains “false or misleading” information or certification provides no protection to the property owner: see s. 168.7 of the Environmental Protection Act.At one site, for example, the consultant (QP) knew of chlorinated solvent contamination in deep groundwater. The wells were removed, during excavation of some contaminated soil, but the groundwater was never retested. On the basis of a verification sample showing that the soil met Table 3, the QP certified that the groundwater met Table 3.

This trick is clearly improper under regulation 153/04, after January 1, 2010. For RSCs prepared before that date, wouldn’t this make them contain “false or misleading information”? What do you think?

©2010 Environmental Law and Litigation. All Rights Reserved.

The Ministry of the Environment has mysteriously failed to release a concordance between the Soil, Ground Water and Sediment Standards for use under Part XV.1 of the Environmental Protection Act, March 9, 2004, which are still in force, and the new version, dated July 29, 2009, that will come into effect on July 1, 2011. Fortunately, Maxxam has prepared one, and is generously sharing it.  Thank you very much, Maxxam!

©2010 Environmental Law and Litigation. All Rights Reserved.

Shari Shapiro has a sad but true story on her blog, the stinky case of waterless urinals in Philadelphia, that illustrates the many ways that old codes and turf protection often hamstring sustainable buildings. We have similar issues here. The Green Energy Act allows the province to make regulations to cut through such barriers, but nothing has been done as of yet.

The one exception is that Ontario has finally adopted the regulation that it promised last May, to prevent building codes and 23 other types of rules from blocking geothermal and rooftop solar projects. O.Reg. 15/10 exempts these projects from almost all restrictions under:

1. The Apprenticeship and Certification Act, 1998.

2. The Building Code Act, 1992.

3. The Clean Water Act, 2006.

4. The Conservation Authorities Act.

5. The Crown Forest Sustainability Act, 1994.

6. The Electricity Act, 1998.

7. The Endangered Species Act, 2007.

8. The Environmental Assessment Act.

9. The Environmental Protection Act.

10. The Fire Protection and Prevention Act, 1997.

11. The Fish and Wildlife Conservation Act, 1997.

12. The Forest Fires Prevention Act.

13. The Niagara Escarpment Planning and Development Act.

14. The Occupational Health and Safety Act.

15. The Oil, Gas and Salt Resources Act.

16. The Ontario Energy Board Act, 1998.

17. The Ontario Heritage Act.

18. The Ontario Water Resources Act.

19. The Pesticides Act.

20. The Provincial Parks and Conservation Reserves Act, 2006.

21. The Public Lands Act.

22. The Safe Drinking Water Act, 2002.

23. The Technical Standards and Safety Act, 2000.

24. The Trades Qualification and Apprenticeship Act.

©2010 Environmental Law and Litigation. All Rights Reserved.

The Ministry of the Environment is starting Approval Reform by putting existing certificates of approval online. According to a recent EBR posting, they will start being available in March. An excellent step, long overdue.

©2010 Environmental Law and Litigation. All Rights Reserved.

The rush to construct rapid transit in Vancouver will occupy the courts long after the Olympics wind down. It was inevitable that once Susan Heyes was awarded $600,000 for her losses, incurred when the Canada line was constructed by cut and cover instead of by tunnel, other merchants would seek similar compensation. Now, in Gautam v. Canada Line Rapid Transit, the BC  Supreme Court has authorized 216 merchants and 67 property owners to bring a class action against Canada Line Rapid Transit Inc., Intransit BC Limited Partnership, Intransit British Columbia G.P. Ltd. and SNC-Lavalin Inc.

As documented in the Heyes litigation, now under appeal, the transit builders switched from tunneling to cut and cover when the cost of tunneling ballooned, an additional cost that federal and provincial funders refused to cover. Exacerbated by the poor soil conditions, cut and cover caused significant disruption to neighborhood businesses for far longer than had been predicted in the environmental assessment. None of this, of course, is unusual. What is unusual is that Ms. Hayes was awarded $600,000 for nuisance, in the absence of any evidence that they transit builders had been negligent, and even though cut and cover had been specifically approved through a federal and provincial environmental assessment.

While I sympathize with the losses of the Cambie Village merchants, I am very concerned about the impact of the class action on the future development of transit in Canada. Everyone suffers from the absence of adequate transit in our urban areas, but the courts can rarely do anything about government inaction. If we make it even more difficult and expensive to build transit, we will have less of it, resulting in more gridlock, more pollution and a poorer economy for all. Governments across the country have already passed laws blocking lawsuits in nuisance against municipalities for sewer and water overflows; perhaps it is time to expand those laws to cover the construction of transit.

©2010 Environmental Law and Litigation. All Rights Reserved.

Dear Readers,

Since you have shown so much interest in the Oakville air permit bylaw, here is some additional information:The Town has updated its website, and the by-law as passed is at
http://securet.oakville.ca/eams/cache/107/ahylr4vngb14yp45p4ze3uqf/8828302162010093643911.PDF

Here is some good background information that was part of the agenda package for the February 1, 2010 council meeting: http://securet.oakville.ca/eams/pubmtgframe.aspx?meetid=813&doctype=SUMMARY
Click on the by-law and 4 supporting files will appear:

Staff report (Legal Department & Environmental Policy): Health Protection Air Quality By-law
– Appendix A – Draft by-law February 1, 2010
– Appendix B – Draft by-law December 22, 2009
– Appendix C – Summary of Consultation comments (153 pages)

For the February 16, 2010 council meeting, the report from the City’s Legal Department “Proposed Power Generation Facility – DRAFT Environmental Review Report” is on the agenda (see http://securet.oakville.ca/eams/cache/107/ahylr4vngb14yp45p4ze3uqf/8903902162010100942641.PDF).

Appendix A to this report is a letter from TransCanada to the Town (athttp://securet.oakville.ca/eams/cache/107/ahylr4vngb14yp45p4ze3uqf/8904002162010101000967.PDF) .
An overview of the TransCanada project is at http://www.transcanada.com/company/oakville.html; click on the link to the draft ERR (be patient, as it’s downloadable on a chapter-by-chapter basis only). Be quick, as the draft ERR will only be posted for comments until February 26.

©2010 Environmental Law and Litigation. All Rights Reserved.

Can municipalities insist that local industries obtain municipal air permits, in addition to those issued by the province?

Spurred by opposition to a new gas-fired electric power plant, the Town of Oakville has opened a new front in the long battle over the role of municipalities in controlling pollution.

The new plant will be much cleaner than the old, coal-fired Lakeview plant that it will replace, and the Ontario Power Authority says it is essential to provide reliable power in the rapidly growing region. However, a provincially-funded study of local air quality has already shown human health impacts from existing levels of air pollution, fueling local opposition to the new power plant.

In December,  Oakville asked the federal ministers of Health and the Environment to issue an interim order under Part V of the Canadian Environmental Protection Act, 1999 to regulated particulate matter (PM10) and respirable particulate matter (PM2.5).  Although these two types of fine dust are designated as toxic substances under CEPA,  and are known to have adverse health effects, the federal government has not adopted regulations to control them.  In part, this is because much of the fine particular matter in our air comes from sources that are difficult to regulate, such as chemical reactions in the atmosphere, motor vehicles, and home fireplaces and woodstoves. Half comes from the US.

The Town also asked the Ontario Ministry of the Environment for a full individual environmental assessment of the proposed power plant; this request is unlikely to succeed. On February 2, Oakville council therefore took matters into its own hands, passing the Health Protection Air Quality By-law 2010-035.

• The by-law applies to all facilities in the Town that send “major emissions” into the air, i.e.,
  • direct emission of >300 kg of fine particulate matter/year;
  • over 10,000 kg/year of volatile organic compounds;
  • over 20,000 kg/year nitrogen oxides (as NO2 equivalent);
  • over 20,000 kg/year sulfur dioxide; or
  • over 10,000 kg/year ammonia.
• Under the bylaw,  the proposed power plant and all future major industries must apply for facility-specific approval of their  proposed air emissions, whether or not they hold Provincial certificates of approval for their air emissions.
• Existing facilities in the Town that cause major emissions to the air must also obtain facility-specific municipal approval of their air emissions.
• Existing emitters who have MOE CofA’s (air) will be required to report to the Town on “major emissions” within 6 months; those that do not require a CofA will have 1 year to submit a report.
• A database of all facilities that report, their emissions rates and whether the facility is a source of a major emission will be publicly available on the Town website.
• Penalties of up to $100,000 may be imposed for facilities that fail to report or obtain an approval.

This bylaw goes far beyond the City of Toronto environmental reporting and disclosure bylaw, by asserting the right to shut down or shut out industries that do not obtain municipal air approvals.   It also goes far beyond municipal bylaws to curb the cosmetic use of pesticides, which were upheld by the Supreme Court in Hudson v. Spraytech. It will almost certainly be challenged in the courts. In the interim, it may or may not hold up the proposed power plant.

• References

A copy of the draft by-law

By-law number 2010-035 – A by-law to assess and control the health effects of

major emissions of fine particulate matter in the Town of Oakville

is available at http://www.town.oakville.on.ca/Media_Files/By-law2010-035_Feb1.pdf

(Note: The version that was passed has not yet been posted on the Town’s website at http://www.town.oakville.on.ca/bylaws.htm )

By  Dianne Saxe and Jackie Campbell.

©2010 Environmental Law and Litigation. All Rights Reserved.

Environment Canada has released 74 pages of proposed regulations on municipal sewage treatment. Once in force, these regulations will set standards for effluent and reporting from about 4000 municipal wastewater facilities, and will considerably tighten discharge standards for many of these plants.

Last year, the Canadian Council of Minister of the Environment endorsed a Canada-wide Strategy for the Management of Municipal Wastewater;  this is part of that strategy. The draft of the proposed regulations is available through Environment Canada’s public inquiry centre at 1-800-668-6767 (inCanada only), 819-997-2800 or environinfo@ec.gc.ca. or directly from the CWWA website at:

http://www.cwwa.ca/pdf_files/MWWEpublicconsultation.pdf

For Environment Canada’s press release, please visit:
http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=71ECFF5C-B4BA-4B24-BEAE-5C6B4F7DFD4F

©2010 Environmental Law and Litigation. All Rights Reserved.

In the last two years, there has been lots of public concern about consumer exposure to bisphenol A (BPA) in soft drinks, baby bottles, etc.). Many vendors and retailers withdrew their BPA products; eco leaders now carry metal water bottles instead of plastic.

Environment Canada is now planning to regulate BPA, but not in consumer products. According to its consultation document, published in November, Environment Canada plans to regulate maximum BPA concentrations in industrial effluents, and is seeking appropriate sampling and testing methodologies for monitoring BPA releases from industry. As well, the government is considering requiring industries that handle BPA to implement an environmental management system.

In 2006, no significant amount of BPA was manufactured in Canada. However, a number of companies reported importing 500,000 kg of BPA and 5 companies reported using up to 1 million kg of BPA. “Significant releases” of BPA have been measured from industrial effluent and municipal wastewater treatment facilities.

If BPA is released to surface water, it can harm aquatic organisms.

The proposed regulations are to be published in the Canada Gazette, Part I by October 17, 2010, with a 60-day comment period. Final regulations will be published in the Canada Gazette, Part II by April 2012.

©2010 Environmental Law and Litigation. All Rights Reserved.

The Ministry of Environment is bracing for the 500 to 800 renewable energy approval applications that they expect to receive once the Ontario Power Authority issues its Feed In Tariff contract offers, starting in March. An approvals team has been assembled. Amid extensive internal consultations and 150 pre-submission meetings, the necessary forms are being released; technical guidance documents will be published soon. The first REA application has already been filed.

Ministry staff are warning stakeholders to watch the Environmental Registry for additional consultations in the coming year. Outstanding policy issues include:

1. The numerous approvals issues associated with transmission;
2. The fees to be paid for renewable energy approval applications;
3. Much more detail on the requirements for offshore wind; and
4. The related need for approvals reform so that other types of approvals aren’t choked off.

Changes are also occurring at the Environmental Review Tribunal, which will hear appeals from REAs. The ERT Chair, Toby Vigod, has announced her retirement in June. Her successor will have a more limited job, as “Associate Chair”, under the lead of the new Executive Chair of Environment and Land Tribunals, Michael Gottheil. Questions are being raised about whether the ERT could or should be folded into the Ontario Municipal Board, which could significantly erode the protection of sensitive lands.

©2010 Environmental Law and Litigation. All Rights Reserved.

Now that the Toxics Reduction Act is in force, Ontario companies are starting to collect data for their first annual report on the first 47 groups of “toxic” substances. The report is not due until June 1, 2011, but it must be based on data to be collected on substances “used” or “created” January to December of this year.

Ministry of the Environment staff have wrapped up their cross-province compliance seminars, but here are some key issues that remain unclear:

1. What is “used”? Do the new rules apply to unintended and undisclosed contaminants of raw materials?  How would an organization know?
2. What is “created”? Anyone with a combustion process will “create” short-lived intermediates that never escape the furnace, and which cannot practically be measured. In practice, these intermediates will probably have to be ignored.
3. What is “approximately equal”? Organizations will be required to redo their mass balance accounting until their toxic substance inputs are “approximately equal to” their outputs, in the hope of identifying all significant material flows. Does that mean 80% equal? 90%? 95%? 99.99%? The costs to business may vary dramatically depending on how this requirement is interpreted. The ministry is promising to provide “guidance” later, “in the spring”, but organizations need to collect data now.
4. An even tougher question is: What is a “process”? To meet federal NPRI requirements, most organizations regulated by this Act already know the quantities of toxic substances that enter and leave their plants. The MOE wants organizations to generate the same information at every step of their internal operations, divided into numerous, finely grained “processes”; the MOE gives examples of a new “process” every time a different piece of equipment is used. However, it is far from clear that this is what the law requires.

The Act and Regulation 455/09 require each regulated organization to quantify its substances at each step of a “process”.  ”Process” is not defined. Section 12 of the Regulation states:
in determining how many processes a stage of the manufacturing operation should be divided into… the owner and the operator of the facility shall ensure that a sufficient number of processes are identified for that stage to enable the owner and the operator to meet the requirements set out in section 9 of the Act…
But section 9 of the Act sheds no light on the question:
The owner and the operator of a facility… shall ensure that, for each process at the facility that uses or creates the substance, the substance is tracked and quantified, in accordance with the regulations, to show how the substance enters the process, whether it is created, destroyed or transformed during the process, how it leaves the process and what happens to it after it leaves the process.
The only defining feature of a “process” seems to be that it creates, destroys, or transforms a toxic substance somewhere along the way. Ontario’s hard-pressed manufacturers and mineral processing operations must therefore make an important choice when they define their “processes” for the first annual report.  They will never be able to redefine them, and the number and detail of the “processes”  will have a major impact upon the overall cost of regulatory compliance. They must therefore think carefully,  and think ahead, about which details are likely to give them useful information about potentially cost-effective changes to their operations.

©2010 Environmental Law and Litigation. All Rights Reserved.

The British Columbia Supreme Court has ruled that homeowners committed an actionable nuisance when they installed a noisy central air conditioner immediately outside their neighbours’ bedroom window, and installed a surveillance camera overlooking the neighbours’ home. The two homes are only 13 feet apart,and the air conditioner was rated at 74 dB. A noise enclosure blanket eventually reduced the noise to 51.8 dB.

While the air-conditioning unit did not breach the municipal noise by law, it exceeded 45 dB, the commonly accepted nighttime maximum noise level standards set by bylaws in other municipalities. The plaintiffs were not unduly sensitive, and the noise from the air conditioner significantly interfered with their sleep.

The affected neighbours, Mr. and Mrs. Suzuki, were awarded a total of $6000 in damages for nuisance. In addition, Mr. and Mrs. Monroe were forbidden to operate their air conditioner if it causes sound beyond 55 dB from 7 AM to 10 PM, and 45 dB overnight, measured anywhere along the property boundary. They were also permanently prohibited from employing surveillance cameras that monitor any part of the Suzuki property. See Suzuki v. Monroe.

©2010 Environmental Law and Litigation. All Rights Reserved.

One of the fascinating sessions at the Davos world economic forum last week was a persuasive demonstration, using game theory, of why we are unlikely to reach a centralized international treaty on climate change, like the one that was hoped for at Copenhagen.

The participants were not politicians or ordinary folk – they were an extraordinary group of the world’s most brilliant and sophisticated. They were divided into four equal groups. Each group was given 20 minutes to develop a (purely artificial) national identity, with national values, a flag, national symbol etc.; then they were to explain themselves to the other groups. The transparent purpose of this exercise was to get the participants to identify with their new groups, as deeply as possible in 20 minutes. An “all-powerful alien” then announced that all humans would be killed unless all participants could agree, within one hour, to join any one of the existing groups. They were permitted three rounds of public, multi-stakeholder negotiations.

They failed to agree.

This should have been an easy negotiation, infinitely easier than the climate crisis. It was only an exercise, with no real-world consequences. There were only four groups, they were of equal size, they had only 20 minutes’ investment in their separate identities, and their claimed “values” were almost the same. They did not need to justify their decisions to anyone who was not at the table. Despite that, at least one group refused to to give up its separate existence, even at the price of certain death for all.

Many other analyses have come to similar conclusions. In the highly praised book, “Why We Disagree about Climate Change”, Mike Hulme describes the attempt to reach a universal agreement on energy (meaning wealth and status) as as ambitious and as doomed as the Tower of Babel.

Are they right? And, if so, what is the alternative? How can we prevent, adapt to and cope with climate change, without a Copenhagen-type treaty? Can we avoid Gwyn Dyers’ Climate Wars?

Should we then be surprised by the feeble results of the Copenhagen Accord? Canada is now promising 17% reductions from 2005 by 2020, the same as the US, and even less than our previous feeble target of 20% from 2005 by 2020. This falls far short of the reductions that scientists (and economists) tell us are necessary.

©2010 Environmental Law and Litigation. All Rights Reserved.