June 2011

Volume 6 - Issue 6

LIABILITY:

When Is Your Company ‘Strictly Liable’ for Environmental Damage?

Damaging the environment doesn’t necessarily make a company liable for an

environmental offence. Companies can avoid liability by showing that they complied with the environmental laws or exercised due diligence. But in the case of a private lawsuit for damages by neighbours whose property was harmed, liability may not be as easy to avoid. For example, a lawsuit may raise a kind of “strict liability” claim that specifically applies to environmental damage called a Rylands claim. For this type of claim, the company is liable for any harm it causes—even if it didn’t cause the harm intentionally or negligently. And strict liability isn’t just a legal theory—just ask the Ontario refinery that recently had to pay $36 million in damages to neighbouring property owners. Here’s what EHS coordinators need to know about Rylands claims to help protect their companies from liability.

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FEATURES

Liability 1When Is Your Company ‘Strictly Liable’ for Environmental Damage?

At a Glance (p. 3)77You Make the Call (p. 3)77

Around the Provinces 10The Inspection Powers of Environmental Inspectors

REGULARS

Law of the Month 1Government Report Recommends Delaying Québec’s Oil & Gas Exploration Rules

Brief Your CEO 4How Courts Determine Whether Companies Exercised Due Diligence

Month In Review 5 A roundup of important new legislation, regulations, government announcements, court cases and arbitration rulings

Winners & Losers 14What Constitutes Due Diligence for Complying with TDGA Placard Requirements?

The Insider's goal is to help EHS professionals do their jobs better and more easily. So tell us what you need! For example, are you unsure about certain requirements under the environmental laws? Need help training supervisors and workers on reporting spills? Share your pressing environmental compliance problems with us by calling (203) 987-6163 or emailing robinb@bongarde.com

Robin L. Bartoneditor

TALK TO US

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LAW OF THE MONTH

Government Report Recommends Delaying Québec’s Oil & Gas Exploration Rules

T he fate of shale gas drilling in Québec is still up in the air. The provincial government had asked the Bureau d'audiences publiques sur l'environnement (BAPE) to review the environmental issues related to

shale gas exploration and development in the province before it released the Hydrocarbons Act, which would set rules on shale gas activities. On March 8, 2011, the BAPE made its report public. Although the full 323-page report is available only in French, key excerpts have been translated into English. In case you don’t have time to read the report or excerpts, here’s a summary of the report’s key recommendations.

eXecutiVe suMMARY

the Problem: A company can be “strictly liable” for any damage to neighbouring properties caused by escape of a hazardous substance, including damage that isn’t caused intentionally or negligently.

4 Key things to Know about one type of strict Liability:

It applies to “unnatural” uses of the property; 1. It can result from single or continuous 2. escapes of a hazardous substance;Complying with relevant laws isn’t a 3. defence; and Due diligence isn’t a defence.4.

ENVIRONMENTAL COMPLIANCE INSIDER BOARD Of ADVISORS

Matthew Allen, M. Eng., P. Eng. OHE Consultants Mississauga, ON

Jason Barlow Wescast Industries Inc.

Wingham, ON

Paul R. Cassidy Blake, Cassels & Graydon LLP

Vancouver, BC

Greg Doran Stantec Consulting Ltd.

Saint John, NB

André Durocher fasken, Martineau, DuMoulin LLP

Montreal, QC

Stacey Ferrara Shell Canada Ltd.

Calgary, AB

Paul MacLean EEM Inc.

Montreal, QC

Mark Madras Gowling Lafleur Henderson LLP

Toronto, ON

EDITOR: ROBIN L. BARTON

Managing editor: GLENN S. DEMBY, ESQ.

PRESIDENT AND CEO: ROB RANSOM

ENvIRONMENTAL COMPLIANCE INSIDER IS PuBLIShED BY BONGARDE hOLDINGS INC. AND IS INTENDED fOR IN-hOuSE uSE ONLY – COMMERCIAL REPRODuCTION IS A vIOLATION Of OuR COPYRIGhT AGREEMENT.

TO ORDER A SuBSCRIPTION TO ENvIRONMENTAL COMPLIANCE INSIDER fOR $397/12 MONThS - PLEASE CALL OuR CuSTOMER SERvICE CENTRE AT

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PuBLICATIONS MAIL #40065442.

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WHAt tHe LAW sAYs Companies can be penalized for violating not only an environmental act or regulation but also “common law,” that is, court-created law developed through decisions in actual cases. Nuisance is an example of a common law claim. And like other common law rights, it gets asserted in a “civil” or private lawsuit for damages.

Another kind of common law claim that property owners may bring to hold a company strictly liable for damage done to their land is called a Rylands claim after an old British case, Rylands v. Fletcher. The theory behind this type of claim is that someone who brings something onto land that isn’t naturally there and that increases the potential danger to others does so “at his own peril” and should be held responsible if that thing escapes the land and damages other people’s property.

To prove a Rylands claim, the “plaintiff” (that is, the person suing for damages) must prove two things:

The defendant used the land in a “non-natural” way; and1.

Due to that unnatural use, something “likely to do mischief,” such as environmental harm, 2. escaped from the land.

If the plaintiff proves these elements, the defendant will be strictly liable for the damage caused by the escape of something from its land. We’ll discuss these elements in more detail below.

Example of a Successful Rylands ClaimHere’s an example of a recent successful Rylands claim. For 66 years, a refinery in the Port Colborne area of Ontario emitted tonnes of nickel into the air until closing in 1984. In Sept. 2000, the MOE announced that it had found higher than expected nickel levels in a soil sample from a neighbouring property. A group of approximately 7,000 property owners in the area sued the refinery in a class action, claiming that the negative publicity about the area created by the public disclosure of nickel contamination lowered their property values.

The Ontario Superior Court of Justice ordered the refinery to pay the class members $36 million. One of the arguments was that the refinery was liable for a Rylands claim. The court agreed that the refining of nickel on the property was an unnatural activity and that nickel particles had escaped from the refinery’s land, damaging the neighbours’ property. So the refinery was liable under this theory [Smith v. Inco Ltd.].

4 KeY tHinGs to KnoWThere are four things you need to know about Rylands claims in case your company is ever faced with one:

1. Reasonable Use of the Land ≠ Natural Use of the LandThe first thing a plaintiff must show to prove a Rylands claim is that the defendant used the land in some “non-natural” way. So what does “non-natural” mean? It’s somewhat easier to focus on what constitutes a “natural” use of the land, with the understanding that anything that isn’t “natural” is by definition “non-natural.”

For one thing, natural use of the land doesn’t necessarily mean a legal use. Thus, for example, the refinery in Inco argued that it was a natural use of its property to operate a nickel refinery because the property was in an industrial city and was zoned for such operations. But citing language from the original Rylands decision, the court noted that bringing something onto the land that’s not naturally found there is apt to make the use unnatural. In this case, the refinery’s land didn’t naturally contain nickel; it brought the nickel to the property to refine it. Thus, the use of the property for a nickel refinery was a non-natural use of the land.

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2. Claim Can Apply to Single or Continuous EscapesThe second element of a Rylands claim requires proof of the escape of something from the land that’s likely to do “mischief,” that is, environmental damage. For example, in the Inco case, the court found that nickel and nickel particles were emitted into the air, escaping from the refinery’s property and causing damage to neighbouring land.

The refinery argued that Rylands claims only apply to single escapes of substances—not to continuous escapes over a period of time. But the court shot down that argument. Whether the escape is a single, isolated incident or a long-term continuous problem is irrelevant. It would be “absurd,” said the court, if single escapes of dangerous substances resulted in liability when multiple escapes didn’t. After all, a defendant that permits multiple escapes of a substance that does environmental damage would seem to be more culpable than one that permitted a single, solitary escape, explained the court.

3. Compliance with the Law Isn’t a DefenceThe fact that the company didn’t break any environmental or other laws in its use of the land isn’t a defence to a Rylands claim. The refinery in the Inco case unsuccessfully tried that argument. It claimed that it wasn’t liable because its operations complied with all environmental and zoning regulations. The court acknowledged that the refinery’s use of the land complied with the law but concluded that such compliance wasn’t a defence against strict liability in a Rylands claim.

4. Due Diligence Isn’t a Defence, EitherUnder environmental laws, simply committing the act banned by the law or failing to do something the law requires isn’t enough. A company can still avoid liability if it shows that it used due diligence to comply with the law. But with strict liability, it’s the act and its consequences that count. Thus, exercising due diligence to prevent the act, such as the escape of a dangerous substance from the land, won’t prevent liability for the resulting damages done to neighbouring property in a Rylands claim.

The court in Inco explained that a defendant may be liable for damage caused by the escape of a substance from its land no matter how careful it may have been or whatever precautions it may have taken to prevent the damage. The idea is that certain high risk activities should face a higher form of liability that requires compensation for any damage done by them—even when they’re conducted with reasonable care.

If this standard seems harsh and unreasonable, remember that Canadian environmental law is driven by the “polluter pays” principle,

which demands that polluters be held responsible for the costs related to the pollution they cause. The Supreme Court of Canada explained the polluter pays principle in a 2003 case called Imperial Oil Ltd. v. Québec (Minister of the Environment). Noting that this principle has been internationally recognized, the Court said, “To encourage sustainable development, that principle assigns polluters the responsibility for remedying contamination for which they are responsible and imposes on them the direct and immediate costs of pollution.” Thus, liability for Rylands claims is consistent with the polluter pays principle.

tHe BottoM LineTo shield companies from Rylands claims, all EHS coordinators can do is ensure that their companies take steps to prevent hazardous substances from escaping their property and causing damage to neighbouring land. If a substance does escape and cause damage, there may not be anything that you can do at that point to protect the company from liability. But if you understand the basic principles of Rylands claims, you can educate senior management on yet another way in which the company can be held liable for environmental harm, in addition to fines for violations of environmental law. Then management may be more open to investing in and implementing measures to prevent environmental damage caused by escapes of “mischievous” substances from company property. 7

SHOW YOUR LAWYERImperial Oil Ltd. v. Québec (Minister of the Environment), [2003] SCC 58 (CanLII), Oct. 30, 2003

Smith v. Inco Ltd., [2010] ONSC 3790 (CanLII), July 6, 2010

Rylands Strict Liability Claims:

AT A GLANCE

Apply to “unnatural” uses of the property; and1.

Can result from single or continuous escapes of a hazardous 2. substance.

And neither complying with relevant laws nor exercising due diligence is a defence to a Rylands strict liability claim.

did Moe Adequately consider Health issues When setting Wind Farm setbacks?

What HappenedAn Ontario resident concerned about the health effects of wind farms challenged the Renewable Energy Approvals Regulation under the Ontario EPA. He claimed that the MOE didn’t consider the “precautionary principle” when setting the minimum setback for wind farms from residences.

QuestionDid the MOE adequately consider the possible health issues when it set the wind farm setbacks?

Answer Yes. To see why the court ruled that the MOE had fulfilled its duties under the Environmental Bill of Rights, see the first case in the left column under ONTARIO on page 6.

YOU MAKE THE CALL

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THE PROBLEMA company charged with violating an environmental law can avoid liability by showing that it exercised “due diligence”—that is, took all reasonable efforts to comply with the law and prevent the violation. One of the best ways to make informed decisions about the specific measures required to establish due diligence is to review what other companies did right and wrong in actual court cases in which due diligence was the main issue. The Syncrude case is an excellent example of what courts look at in deciding if a particular company exercised due diligence.

THE EXPLANATIONDue diligence is a concept, not a specific formula. The question of whether a defendant exercised due diligence gets answered one case at a time on the basis of the specific facts involved. But what all due diligence cases have in common are the factors the courts look at to evaluate a company’s due diligence defence. All of these factors played a role in the Syncrude case, including:

Gravity of the effect. The more severe the potential harm from non-compliance, the greater the efforts a company must make to prevent it. The court said that severe contamination with bitumen has deadly consequences for waterfowl and even relatively mild contamination can have serious long-term adverse consequences.

Complexity of compliance. Experts at the trial testified that deterring birds from the tailings pond is complex, requiring a high level of expertise. For example, the pond in question was the size of about 640 football fields and located under major migratory flyways. The court concluded that the company needed expertise to effectively manage the risk to wildlife. But the team that was overseeing the bird deterrence program had no formal training in managing wildlife.

Preventive system. The company had planned to implement a system to deter birds using sound cannons and human effigies starting April 1, depending on the weather and arrival of birds.

But when the birds landed on the pond on April 28, the sound cannons hadn’t yet been deployed on the pond’s perimeter. In addition, the company didn’t have enough cannons to space them 240 metres apart as called for by its plan.

Alternative solutions. The court found that there was “no real industry standard for bird deterrence.” But it noted that oversight of the bird deterrence system by people with appropriate training, more comprehensive written procedures and earlier implementation of the system were “reasonable and feasible alternatives” to the company’s approach.

Foreseeability. The company argued that the incident was unforeseeable because unusual weather conditions prevented it from deploying its bird deterrence system earlier. But the court wasn’t swayed. Adverse weather in early April isn’t uncommon. Plus, bad weather makes it more likely that birds will land. So the company should have anticipated that bad weather might occur and deployed the deterrence system earlier.

Bottom line: The court concluded that the company didn’t establish a proper system to ensure that wildlife wouldn’t be contaminated in the tailings pond or take reasonable steps to ensure the effective operation of that system.

THE LESSONAs the court in Syncrude said, companies aren’t required to show that they took all possible steps to avoid liability or to “achieve a standard of perfection or show superhuman efforts.” They are, however, required to prove that they have proper EHS systems and that they took all reasonable steps to ensure the effective operation of these systems. Thus, you and your fellow officers and directors must ensure that the company has an EHS system that works effectively to comply with all environmental requirements and adequately protect the environment. 7

SHOW YOUR LAWYERR. v. Syncrude Canada Ltd., [2010] ABPC 229 (CanLII), June 25, 2010

How courts determine Whether companies exercised due diligence

A monthly briefing to educate management

BRieF YouR ceo

Waterfowl died after landing on an Alberta oil company’s tailing pond containing hazardous substances, including bitumen. The company was convicted of violations of federal and Alberta environmental law for failing to store a hazardous substance so that it didn’t come into contact with animals. The court rejected the company’s due diligence defence, ruling that it failed to take all reasonable steps to prevent waterfowl from contacting the hazardous substances [R. v. Syncrude Canada Ltd.].

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MontH in ReVieWA roundup of important new legislation, regulations, government announcements, court cases and arbitration rulings

tHe RePoRtBAPE’s Mandate: The government asked the BAPE to do three things:

Propose development guidelines for shale gas exploration and 1. production that encourage its harmonious coexistence with the neighbouring environment, populations and existing activities;

Propose a legal and regulatory framework for the safe and 2. sustainable development of shale gas exploration, capture and production; and

Work with scientific advisors on evaluating all challenges related 3. to the mandate.

Its Recommendations: The report contains numerous observations as well as recommendations (called “opinions”). Some of the most important include:

A strategic environmental assessment should be conducted to 77gather scientific knowledge necessary to identify the potential risks associated with shale gas exploration and extraction. While the assessment’s being done, hydraulic fracturing should be authorized only for work related directly to the assessment but other exploration work could continue;

A shale gas industry consultative committee should be set up to 77help ensure that the industry can coexist harmoniously with the community. The regional land and natural resource commissions could perform this task by considering project proposals and then submitting their opinions to the Minister of Sustainable Development, Environment and Parks;

Although it’s important to recognize the province’s responsibilities 77as trustee of this natural resource, municipal authorities should also be involved to achieve integrated management of the shale gas industry’s activities within their respective territories. Municipalities should be allowed to structure the development of the shale gas industry in the same way as they structure other types of industries, including agriculture; and

Exploration and extraction activities should be authorized by 77the Minister of Sustainable Development, Environment and Parks, so that all environmental issues can be addressed in a single certificate of authorization. The current framework divides authority over the shale gas industry between two separate government departments. This structure isn’t conducive to integrated supervision and control, says the BAPE.

AnALYsisThe BAPE report’s opinions are intended to provide a legal and regulatory framework for safe development of the shale gas industry. Some of the proposed measures may need time to become effective, while others, such as the adoption of measures to ensure diligent monitoring of fugitive methane emissions at well sites, surface water and groundwater quality, and disturbances, don’t require legislative or regulatory amendments and could be implemented in the short term.

In response to the report, the government announced its intention to create a committee of experts and representatives from government, municipalities and industry to perform the recommended strategic environmental assessment on shale gas. But it faces an uphill battle in getting public support for shale gas exploration and development. According to a recent poll:

55% of Québecers are against shale-gas drilling, up from 37% in a 77similar survey done in Sept. 2010;

Opposition was even higher—75%—among people who said 77they were aware of the issues;

Three-quarters of respondents said they wanted a moratorium 77on shale gas drilling; and

About half of the people opposed to shale gas drilling said 77they would be open to it if a moratorium was put in place and independent studies found that it could be done safely and with minimal environmental impacts. 7

LAW oF tHe MontH (cont'd from page 1)Government Report Recommends delaying Québec’s oil & Gas exploration Rules

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LAWs & AnnounceMentsuranium MiningMarch 17: A public forum did little to create consensus on uranium mining in Nunavut. A Mining Watch Canada representative said waterways in the Athabasca region of Saskatchewan had been polluted with radioactive materials from such mining. But a representative from the Canadian Nuclear Safety Commission said that regulation and enforcement have eliminated most of the dangers associated with uranium mining, claiming that “today’s uranium mines are at levels of safety similar to other mines in Canada.”

LAWs & AnnounceMents, cont'dsealsMarch 16: The federal Minister of Fisheries and Oceans issued a statement welcoming Norway’s decision to join Canada’s request to the World Trade Organization for the establishment of a dispute settlement panel in connection with the European Union’s ban on seal products. It stated, “Canada welcomes Norway’s support for our position that the European Union’s ban on seal products is groundless.”

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LAWs & AnnounceMents Acid RainMarch 14: The Canadian and US governments marked the 20th anniversary of the Canada-US Air Quality Agreement, which has significantly reduced acid rain and smog. In Canada, there have been significant declines in emissions of the key pollutants that contribute to smog, acid rain and poor air quality since 1990. For example, sulphur oxide emissions declined by about 54% and particulate matter emissions have been reduced by 34%.clean transportationMarch 31: According to a new report from the Secretariat of the Commission for Environmental Cooperation, cross-border cooperation to improve environmental performance of the North American freight system is urgently needed to enhance environmental sustainability. The report, which focuses on road and rail transport, finds that while emissions from light-duty vehicles are expected to drop by 12% by 2030, freight truck emissions are projected to increase by 20%. oil sandsMarch 24: The federal and Alberta governments released a new Lower Athabasca Water Quality Monitoring Program in response to the Federal Oil Sands Advisory Panel report. The plan:

Highlights the need for water quality measurements to 77be taken more frequently and in more placesNotes that the water monitoring program must link with 77other monitoring systems, such as those for air quality and biodiversityAssesses the cumulative effects of oil sands activities77Promotes transparency by making all data publicly 77available.

cAses diesel Fuel spill costs Rail company $75,000Environment Canada determined that the source of a diesel slick near the confluence of Barker Creek and the Fraser River was a fuel pumping system at a rail company yard. The company was convicted of a Fisheries Act violation. The court fined it $5,000 and ordered it to pay $70,000 to projects related to the conservation and protection of fish and fish habitat in the waters of the Fraser River and its tributaries [Canadian National Railway, Govt. News Release, March 14, 2011].disposal company owner Penalized $9,000 for Waste oil exportsA waste disposal company exported several shipments of waste oil to the US after its export permit expired. The company’s owner pleaded guilty to four violations of the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations and one violation of the CEPA. The court fined him $4,000 and ordered him to pay $5,000 to the federal Environmental Damages Fund [Gene Baniulis, Govt. News Release, March 18, 2011].

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LAWs & AnnounceMentsenvironmentalismMarch 14: Environmental groups launched a new initiative in response to confusing anti-environmental statements from Ontario’s elected officials. Radio ads, community organizing and a new website—comeclean.ca—are key elements of the effort. The website will help residents get involved by asking their own questions to elected officials and tracking what elected officials are saying. Radio ads will focus on clean energy jobs, burning dirty coal, clean water, pesticides and the Greenbelt.

cAsesMoe Adequately considered Health issues When setting Wind Farm RegulationsA resident challenged the Renewable Energy Approvals Regulation under the Ontario EPA, claiming that the MOE didn’t consider the “precautionary principle” when setting the minimum setback for wind farms from residences. The court disagreed. The Environmental Bill of Rights requires the MOE to use a “precautionary science-based approach…to protect human health and the environment.” The MOE fulfilled that duty by holding public consultations on the regulation and considering more than 100 studies and scientific literature. It explained that the health concerns of people living near wind turbines can’t be denigrated, but they don’t “trump” other considerations. Plus, the court noted that people living near wind farms can challenge their approvals by raising any health concerns with the Environmental Review Tribunal [Hanna v. Ontario (Attorney General), [2011] ONSC 609 (CanLII), March 3, 2011].seller Liable to Buyer for Remediating concealed contaminationA land buyer sued the seller for the more than $65,000 it spent remediating contaminated soil discovered after the sale. The court ordered the seller to pay the remediation costs. Although the buyer had had an environmental inspection done before the sale, the seller had concealed the contamination—which he knew about—and prevented soil testing in the contaminated area. He also refused to give the buyer an environmental warranty for the land, which “lends further support to a finding of concealment,” said the court [Outaouais Synergist Inc. v. Keenan, [2011] ONSC 637 (CanLII), March 23, 2011].two companies Fined $100,000 for not Reporting Pesticide spill A company delivered a pesticide to a farm supply retailer. While unloading the truck, the driver noticed that the pesticide had spilled onto the ground. Staff from both companies worked together to contain and clean the spill area. But no one from either company reported it to the MOE. Both companies pleaded guilty to having control of a pollutant that was spilled and failing to promptly notify the MOE. The delivery company was fined $75,000 and the retailer $25,000 [Scotland Agromart Ltd. and Summerville Custom Spraying Ltd., Govt. News Release, March 21, 2011].WHMis Label Violation costs Janitorial company $60,000 A janitorial company worker attempting to clean the floor at a college campus asked a supervisor for floor cleaner. The supervisor poured a floor cleaning chemical from a properly labelled commercial container into a water bottle and left the bottle on a table. But the supervisor didn’t label the water bottle to identify it as containing floor cleaner. The worker found the bottle, assumed it was filled with water and drank from it. He coughed up blood, vomited and briefly lost consciousness. The company pleaded guilty to failing to ensure that the floor cleaner was transferred into a container with a proper workplace label. The court fined it $60,000 [Hurley Corp., Govt. News Release, Feb. 18, 2011].

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LAWs & AnnounceMents shale GasApril 4: The province is putting together a team of senior technical and policy staff to review environmental issues associated with hydraulic fracturing, a technique used to free natural gas trapped in shale rock formations. The team will identify potential environmental issues, determine how they’re managed in other jurisdictions and identify industry best practices. It’ll also look at reviews from other Canadian jurisdictions and in the US.

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LAWs & AnnounceMents ForestryMarch 21: To celebrate World Forestry Day, BC held a ceremonial tree planting. Less than 1% of BC’s forests are harvested each year. By law, every tree harvested must be replaced. Each year, approximately 200 million seedlings are planted. In addition, the province has more land—52 million hectares—certified to one of three internationally recognized sustainable forest management certification standards than any other jurisdiction in the world.

clean WaterMarch 12: In celebration of Canada Water Week and World Water Day, the government provided an update on actions taken under the Living Water Smart: British Columbia’s Water Plan:

Launching the Living Water Smart 77BlogCo-funding and supporting the 77Okanagan River Restoration InitiativeFunding and supporting a full 77remediation plan for the Mount Washington MineSupporting watershed management 77planning in the Township of Langley and the Cowichan BasinChanging the Green Building Code 77to require the use of low-flush toilets and other water-efficient plumbing fixturesDeveloping two guidance 77documents to help municipalities achieve water sustainability outcomes.

cAsesenvironmental AssessmentsThe Environmental Assessment Office took the following actions in March and April:

Accepted an application for 77an environmental assessment certificate (EAC) for the proposed Wildmare Wind Energy Project [April 1]Accepted an application for an EAC 77for the proposed Tumbler Ridge Wind Energy Project [April 1]Extended the public comment 77period for the proposed Nahwitti Wind Farm Project [March 29]Closed the comment period for 77the proposed McLymont Creek Hydroelectric Project [March 10]Opened the public comment period 77on the proposed Cabin Gas Plant Project [March 9].

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LAWs & AnnounceMentsendangered speciesMarch 16: The government released provincial management plans for the mountain fern and the American eel, which were both listed as vulnerable under the Endangered Species Act in 2007. The mountain fern is a colony fern with light green fronds that can reach heights of 75 centimetres. The American eel is a freshwater eel that breeds in the Sargasso Sea but grows and matures in the province’s freshwater rivers, lakes and estuaries.

cAsesenvironmental Assessments EPA environmental assessment actions in March and April:

Registration of Forteau Municipal Park, Forteau River [Reg. 1570, April 1]77Registration of Huguette Lake Sand and Gravel Quarry [Reg. 1571, April 1]77Registration of Wabush East Woodford Rock Quarry [Reg. 1572, April 1]77Release of Wabush Area Quarry [Reg. 1557, April 1]77Registration of Cape St. Francis to Bauline Hiking Trail [Reg. 1569, March 24]77Registration of Sandy Lake Dam Storage Increase [Reg. 1568, March 24]77Registration of Deer Lake Airport Sewage System Upgrade [Reg. 1567, March 24]77Release of Caribou Lake Outfitter Lodge Pond Access Road [Reg. 1554, March 24]77Release of Fischell’s Brook Forage Production (Resubmission) [Reg. 1542, March 24]77Release of Foxtrap Access Road Sand Quarry [Reg. 1553, March 24]77Release of Joan Lake Direct Shipping Ore Project (Phase Two) [Reg. 1465, March 24]77Approval of environmental protection plan for Baie Verte, Ming Copper-Gold Mine 77and Nugget Pond Mill [Reg. 1487, March 24]Registration of Burin Peninsula Multi-use Eco-Tourist Trail Loop [Reg. 1566, March 15]77Registration of Baie Verte Trunk Water Supply Transmission Pipeline [Reg. 1565, 77March 15]Registration of Southwest Arm Labrador Cottage Road [Reg. 1564, March 15].77

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LAWs & AnnounceMentsLake WinnipegMarch 23: The province welcomed six new partners in the Lake Friendly products campaign, which started in 2009 with 23 retail outlets in communities around the south basin of Lake Winnipeg stocking and advertising lake-friendly products. The campaign has since expanded to cover a number of larger retail outlets in Manitoba and Kenora, Ontario, committed to promoting EcoLogo-certified products.

MooseMarch 18: Manitoba is investing $800,000 to address alarming declines in moose populations in several areas of the province, including:

Game Hunting Area (GHA) 18 in the Duck Mountain area77GHA 14 in the vicinity of the Swan-Pelican Provincial Forest77GHA 26, which extends from Lake Winnipeg to the Ontario boundary between the 77Winnipeg and Wanipigow rivers, including Nopiming Provincial Park.

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LAWs & AnnounceMents

clean energyMarch 23: Publicly owned wind farms operated by the Prince Edward Island Energy Corporation recorded $3.5 million in profits for 2010, which will be re-invested into further wind energy development as well as the Office of Energy Efficiency. The provincial Crown corporation also reduced the debt on its wind farms by $10 million.

HerringMarch 24: There isn’t enough scientific evidence to support a change in the allocation of fall herring to the seiner fleet, says the province. The federal Department of Fisheries and Oceans announced that the seiner fleet will be allowed to retain up to 5,000 metric tonnes of fall herring caught during the spring season in an area of the Laurentian Channel north of the Magdalen Islands. The decision was made based on a limited fishery in 2010 in which only 302 tonnes were landed.

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LAWs & AnnounceMents sustainable developmentMarch 30: The Sustainable Development Commissioner released a report on audits conducted in 2010-2011. Highlights:

The precautionary principle must be taken into account when new projects are 77considered, especially those involving shale gasThe evaluation of development projects must account for the ecosystem 77support capacityThe issuance of certificates of authorization is primarily based on compliance 77with emission standards without regard for the cumulative effect on the environmentThe province doesn’t always correctly enforce the environmental laws and 77regulations in effect and must ensure that they’re adapted to the challenges of the 21st century.

Water conservationMarch 28: The government unveiled its strategy for drinking water conservation. By 2017, Québec hopes to reduce the average water service production per person by at least 20% for the province overall. It also hopes to reduce the leakage rate of all waterworks systems to a maximum of 20% of the water supply.Residual MaterialsMarch 15: The government announced its Residual Materials Management Policy and five-year action plan to implement measures on the three major issues of residual materials management::

Putting an end to resource wastage77Helping meet the objectives of Québec’s Climate Change Action Plan and its 77Energy StrategyIncreasing accountability among everyone involved in residual materials management.77

cAsescanning Factory Fined $8,600 for c of A ViolationsA canning factory pleaded guilty to three violations of the Environment Quality Act for failing to meet the conditions of its C of A and discharge standards for phosphorus and suspended solids. The court fined it $8,600 [Products Inc. SG, Govt. News Release, March 24, 2011].

nt

LAWs & AnnounceMentsWildlifeApril 4: The results of public consultations on the proposed new Wildlife Act are now available. The report outlines the main elements of the new legislation, the major issues raised during consultations held between Nov. 2010 and Feb. 2011 and how the government is addressing these concerns.climate changeMarch 22: Yellowknife is on this year’s top 10 list of cities leading the fight against climate change, according to the World Wildlife Federation and the magazine Corporate Knights. The list aims to show how cities are taking advantage of resources available to them to go greener. Some of the criteria used to score cities on the list are their GHG reduction targets, construction of eco-friendly buildings and promotion of carbon-free transportation.

ALBeRtA

LAWs & AnnounceMents BioenergyApril 1: Alberta implemented a Renewable Fuels Standard that requires an annual average of 2% renewable diesel in diesel fuel and 5% renewable alcohol in gasoline sold in the province. The GHG emissions of renewable diesel or alcohol must be at least 25% lower than the equivalent petroleum fuel. Alberta was the first North American jurisdiction to commit to a GHG emission threshold for renewable fuel through a Renewable Fuels Standard.

ethaneMarch 23: A program to increase extraction of ethane is being expanded. Under the Incremental Ethane Extraction Program, petrochemical companies get royalty credits for consuming incremental ethane. The revisions will help encourage more ethane extraction from off-gases that result from bitumen refining or upgrading and thus reduce GHG emissions.

carbon captureMarch 11: A six-member panel of international experts will help guide Alberta’s carbon capture and storage Regulatory Framework Assessment by examining the environmental, safety and assurance processes for carbon capture and storage (CCS) that exist and determining what, if any, new processes need to be put in place. This review will also look at the existing regulatory regime in Alberta as well as CCS frameworks from other jurisdictions. The panel will report back to the Minister of Energy in the fall of 2012.

RecyclingApril 1: That’s when the fee on medium truck tires, such as those used on transport trucks, buses and trailers, increased from $4 to $9. The fees paid when buying tires for cars, pickup trucks and other light-duty vehicles—about 80% of all tires sold in the province—stayed the same. In addition, fees for industrial and off-road tires were added to the program. See, www.albertarecycling.ca.

cAses company and two individuals Face Hazardous Waste and obstruction chargesThe province laid environmental charges under the Environmental Protection and Enhancement Act against a bus company and two individuals for failing to store hazardous waste and hazardous recyclables properly; failing to provide information requested by an investigator; interfering with an investigation and instructing a worker not to provide documents [Diversified Transportation Ltd., Martin (Paul) Taylor and Mark Hannah, Govt. News Release, March 51, 2011].

Yt

LAWs & AnnounceMents state of the environment ReportMarch 21: The Yukon Environment Act requires a State of the Environment Report to be completed every three years. The government just released the State of the Environment Report on 2008. Highlights:

Particulate matter levels in the air were the lowest of all other Canadian air quality 77surveillance stationsRegional land use planning was underway for 26% of Yukon’s land mass7712% of Yukon was protected as a national or territorial park, habitat protection area 77or other designationWhitehorse diverted 17% of its solid waste from landfills by recycling and 77composting.

9Environmental 7 Compliance Insider

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neW

BRun

sWicK

LAWs & AnnounceMentsWetlandsMarch 18: The government announced short- and long-term strategies on wetland management. As part of the short-term strategy, the following wetland management changes have been implemented:

The government will use known areas of wetland mapped by the Department of 77Natural ResourcesThe department won’t require functional assessments or delineations but permits 77will be required for alterations in or within the 30-metre buffer of a mapped wetlandCurrent land uses in provincially significant wetlands (PSWs) will be allowed to 77continue but only limited new development in PSWs will be permitted next year.

energy efficiencyApril 1: Efficiency NB revised its residential energy efficiency programs to help residents realize greater savings, such as increased incentives for upgrades with high energy-saving potential, effective April 1. Owners of homes and apartment buildings who completed energy assessments before April 1 will follow the prior program guidelines until Oct. 1. After that date, all applications will be assessed using the new guidelines.

cAsesillegal Fishing costs Man $2,500 & Fishing equipmentDepartment of Natural Resources conservation officers found a fisherman in possession of an Atlantic salmon on the Nashwaak River, which was closed to the retention of salmon as a conservation measure. He was fined $2,500 after being convicted of three illegal fishing charges. He also forfeited his fishing equipment [Michael Peter Clark, Govt. News Release, March 17, 2011].

sAsK

AtcHeW

An

LAWs & AnnounceMents BioenergyApril 4: The government introduced The Renewable Diesel Act in the Legislature. The new legislation calls for fuel distributors to include 2% renewable diesel content in diesel fuel sold in Saskatchewan as of July 1, 2012 on an annual average basis and establishes a mechanism to administer and monitor compliance with the fuel mandate.invasive speciesMarch 30: The MOE moved to immediately ban the import, possession and sale of all aquarium fish deemed to be aquatic invasive species, such as the northern snakehead. Current regulations on invasive species historically haven’t applied to aquarium fish. The ministry has asked the public not to purchase the northern snakehead, which was available at some pet stores in the province.dutch elm diseaseApril 1: Pruning of elm trees is now prohibited throughout Saskatchewan until August 31. Fresh cuts from pruning can attract the beetles that spread Dutch elm disease, increasing the chance of an infection. The annual pruning ban is in effect during the time of year when elm bark beetles are most active.

2011Environmental Compliance Insider Yearbook

A Crucial Round-Up of Insider “How-to” Help to Make Environmental Compliance Easier in the Year Ahead

The new 2011 Environmental Compliance Insider Yearbook is a round-up of the most crucial compliance articles, expert environmental ideas, instructions, practical working tools and recent legal alerts from EnvironmentalComplianceInsider.com.

Just flip to the section you need for instant answers. Preparing your environmental program for a new year of challenges has never been so quick or so easy.

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The biggest environmental "do's" and "don'ts" of the year77The environmental year in review for your province or 77territory

A spotlight on court case winners and losers77Self-tests for environmental knowledge in key areas77Focus on new environmental compliance obligations77New laws that could affect your environmental programs 77directly

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Government inspectors have authority to seize documents, take test samples and perform other functions necessary to enforce the environmental and other laws. Here’s a chart showing the powers environmental inspectors in each part of Canada may exercise when conducting inspections under the jurisdiction’s primary environmental law:

ARound tHe PRoVinces

the inspection Powers of environmental inspectors

continued on PAGe 11

PoWeRs oF enViRonMentAL insPectoRs

Jurisdiction While conducting inspections, environmental inspectors are authorized to: Relevant secs. of the Law

Fed Examine any substance, product, fuel, cleaning product or water conditioner or any other thing relevant to 1.

the administration of the Act that’s found in the place;Open and examine any receptacle or package found that they believe on reasonable grounds contains any 2. substance, product, air contaminant, fuel, cleaning product or water conditioner, engine, equipment or component;Examine any books, records, electronic data or other documents that they believe on reasonable grounds 3. contain any information relevant to the administration of the Act and make copies of them or take extracts from them;Take samples of anything relevant to the administration of the Act; 4. Conduct any tests or take any measurements;5. Use or cause to be used any computer system at the place to examine any data contained in or available to 6. the computer system;Reproduce any record or cause it to be reproduced from the data in the form of a printout or other 7. intelligible output;Take a printout or other output for examination or copying; and8. Use or cause to be used any copying equipment at the place to make copies of the record.9. When they have reasonable grounds to believe that a provision of the Act or the regulations has been 10. contravened, they may seize and detain anything:

by means of or in relation to which they reasonably believe the contravention occurred; ora. that they reasonably believe will afford evidence of the contravention.b.

CEPA, Secs. 218(10), 218(13), 223(1)

AB Require the production of any documents that are required to be kept under the Act or any other documents that 1.

are related to the purpose for which they’re exercising any other power;Require that any thing be operated, used or set in motion under conditions specified by the investigator;2. Use any machine, structure, material or equipment in the place the investigator is inspecting in order to carry out 3. the inspection;Take samples of any substance or thing;4. Conduct tests or take measurements;5. Make copies of or take extracts from any documents;6. Use any computer system at any place to examine any data contained in or available to the computer system;7. Record or copy any information by any method;8. Reproduce any record from data in the form of a printout or other intelligible output;9. Take a printout or other output for examination or copying;10. Use any copying equipment to make copies;11. Take any photographs or audio/video records; 12. Make reasonable inquiries of any person, orally or in writing; and13. Without a court order or a search warrant, seize anything that’s produced, or that’s in plain view, during an 14. inspection if they have reasonable grounds to believe that there has been an offence committed and that the thing will afford evidence as to the commission of the offence.

Environmental Enhancement and Protection Act, Secs. 198(1), 198(5), 204(1)

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continued on PAGe 12

ARound tHe PRoVinces continued FRoM PAGe 10

Bc

Inspect, analyze, measure, sample or test land, and any article, substance or waste located on or in the land, and 1. premises to ascertain:

whether pollution is present; a. the quantity of waste produced, treated, stored, handled, transported or discharged; orb. the characteristics of waste produced, treated, stored, handled, transported or discharged;c.

Take away samples of land, articles, substances or waste;2. Examine and take away copies of records relating to:3.

the production, treatment, storage, handling, transportation and discharge of waste; anda. the characteristics of the waste produced, treated, stored, handled, transported or discharged;b.

Require that anything related to the production, treatment, storage, handling, transportation or discharge of waste 4. be operated, used or set in motion under conditions specified by them;Use a computer system at the place that’s being inspected to examine data, contained in or available to the 5. computer system, related to the production, treatment, storage, handling, transportation or discharge of waste;Record or copy by any method any information related to the production, treatment, storage, handling, 6. transportation or discharge of waste;Use any machine, structure, material or equipment in the place that’s being inspected as is necessary to carry out 7. the inspection;Use copying equipment located at the place that is being inspected to make copies to take away; 8. Take photographs or make audio or video records; and9. If they conclude in the course of an inspection that they have reasonable grounds to believe that a person has 10. contravened or is contravening this Act or the regulations, they may:

order a person to do anything the officer considers necessary to stop the contravention or prevent another a. contravention; and seize anything validly inspected by the officer that they believe on reasonable grounds:b.

was used or is being used in the contravention; ori. will afford evidence of the contravention.ii.

Environmental Management Act, Secs. 109(4), 112(1)

MB

Inspect and test any process of production or manufacture and any raw or manufactured substance or material 1. used therein or relating thereto for which they have reasonable or probable grounds to believe may be producing or releasing pollutants and take and retain samples of same for purposes of analysis; and Examine and make copies of any document required to be kept by the Act, the regulations, orders or licences.2.

Environment Act, Sec. 20

nB

Inspect any structure, installation, operation, plant or machinery and inspect and test any process of production 1. or manufacture and any raw or manufactured substance or material used in or relating to the process that they reasonably believe has been, is or will be producing or releasing a contaminant and take samples of discharges, deposits, effluents or emissions; Take samples of any substance or material; and2. Detain for the purposes of evidence:3.

any object, substance or material or a sample of any object, substance or material; anda. any documentary material regardless of physical form or characteristics which they discover while conducting b. an inspection and believe, on reasonable grounds, may afford evidence of a violation of a provision of or a failure to comply under the Act or the regulations.

Clean Environment Act, Secs. 24 and 24.2

nL

Ascertain whether the operations, activities or undertaking of the approval holder, proponent or licence holder 1. comply with the Act or an approval, varied approval, exemption or release conditions or licence issued under the Act; Ascertain the extent to which a substance may cause, is causing or has caused an adverse effect, and the cause of 2. an adverse effect; Determine the manner in which an adverse effect may be prevented, eliminated, reduced or ameliorated and 3. determine how the environment may be rehabilitated; Inspect all plans, specifications, drawings, books, records, reports, registers, analyses, data and documents 4. relating to the operation or activity located there; Require a person having the care, management or control of the thing or substance to detain the thing at the 5. place where it’s found or remove the thing from the place where it’s found and give a receipt for it; For the purpose of analysis, take from the business premises, building or property samples of substances in a 6. volume or quantity which, in the opinion of the inspector, is sufficient to permit an analysis of the substance to determine its nature, composition, source or compliance with the Act, an approval, varied approval or licence or with the terms of an undertaking or environmental assessment under the Act; and Analyze or test a substance on the premises, building or property.7.

Environmental Protection Act, Sec. 94(1)

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continued on PAGe 13

ARound tHe PRoVinces continued FRoM PAGe 11

nt nu

Examine any substance;1. Open and examine any receptacle or package that they have reason to believe contains any contaminant;2. Examine any books, records, electronic data or documents that the inspectors believe on reasonable grounds 3. contain any information required by the inspectors and make copies of them or take extracts from them;Take samples of anything; 4. Conduct any tests or take any measurements;5. If, during the course of an inspection, they have reasonable grounds to believe that any provision of the Act, the 6. regulations or the provision of a permit or licence has been contravened, they may seize any thing:

by means of or in relation to which they reasonably believe the contravention occurred; ora. that they reasonably believe will afford evidence of the contravention.b.

Environmental Protection Act, Secs. 19(1) and 26(1)

ns For any place to which an approval, certificate, temporary approval, variance or order issued pursuant to the Act 1.

relates, determine:the extent, if any, to which a substance may cause, is causing or has caused an adverse effect;a. the cause of any adverse effect that may occur, is occurring or has occurred;b. how an adverse effect may be prevented, eliminated, reduced or ameliorated and how the environment may c. be rehabilitated; andcompliance with the Act and the regulations;d.

If they have reasonable grounds to believe that anything may release, is releasing or has released into the 2. environment a substance that may cause, is causing or has caused an adverse effect;

require the person having care, management or control of the thing to detain the thing at the place where it is a. found; orremove the thing or cause it to be removed from the place where it is found and give a receipt for it;b.

Require the production of any documents that are required to be kept pursuant to the Act or any other 3. documents that are related to the purpose for which they’re exercising any inspection powers;Remove documents that they’re entitled to examine or copy or otherwise reproduce but shall give a receipt to the 4. person from whom the documents were taken and shall promptly return those documents on completion of the examination or reproduction; andWithout a court order or a search warrant, seize anything that’s produced or that’s in plain view during an 5. inspection if they have reasonable grounds to believe that there has been an offence committed under the Act and that the thing will afford evidence as to the commission of the offence.

Environment Act, Secs. 119(1), 119(5) and 122(1)

on Make necessary excavations; 1.

Require that anything be operated, used or set in motion under conditions specified by them; 2. Take samples for analysis;3. Conduct tests or take measurements;4. Examine, record or copy any document or data, in any form, by any method;5. Record the condition of a place or the natural environment by means of photograph, video recording or other 6. visual recording;Require the production of any document or data, in any form, required to be kept under the Act and of any other 7. document or data, in any form, related to the purposes of the inspection;Remove from a place documents or data, in any form, for the purpose of making copies; 8. Make reasonable inquiries of any person, orally or in writing; and9. Without a warrant or court order, seize anything that’s produced or that’s in plain view, if they reasonably believe 10. that the thing:

will afford evidence of an offence under the Act;a. was used or is being used in connection with the commission of an offence under the Act and that the seizure b. is necessary to prevent the continuation or repetition of the offence; oris discharging or is likely to discharge a contaminant into the natural environment and an adverse effect has c. resulted or is likely to result from the discharge.

Environmental Protection Act, Secs. 156(2) and 160

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ARound tHe PRoVinces continued FRoM PAGe 12

Pe Examine any contaminant or suspected contaminant, or any other thing in respect of which the Act or the 1.

regulations apply, and take samples of it;Require any natural person or corporation to produce for inspection or copying, in whole or in part, any record or 2. other document that they believe on reasonable grounds contains any information relevant to the administration of the Act or the regulations; Conduct any tests or analyses or take any measurements; 3. If they believe on reasonable grounds that an offence under the Act or the regulations has been committed, they 4. may seize and detain anything:

by means of or in relation to which they believe on reasonable grounds the offence was committed; ora. that they believe on reasonable grounds will afford evidence as to the commission of an offence under the Act b. or the regulations.

Environmental Protection Act, Secs. 7(4) and 7(8) (as to people); 7.1(4) and 7.11(8) (as to corporations)

Qc

Collect samples;1. Install measuring apparatus;2. Make analyses;3. Examine records; and4. Examine the premises for the enforcement of the Act and the regulations hereunder. 5.

Environment Quality Act, Sec. 119

sK If they believe on reasonable grounds that adverse effects may be created or are being created, they may seize, 1.

remove and detain any item or thing they consider necessary to stop or prevent the creation of adverse effects.

Environmental Management and Protection Act, 2002, Sec. 70(1)

YK Make necessary excavations; 1.

Require that any place or thing not be disturbed or that any process or thing be operated, used, or set in motion 2. under conditions specified by them; Take samples, conduct tests, or take measurements; 3. Record or copy any information relevant to the inspection by any method; 4. Require the production of any document that’s required to be kept under the Act or the regulations or any other 5. document or thing that’s related to the purposes of the inspection; Remove from a place a document for the purpose of making copies or extracts and promptly return it to the 6. person who produced it; Make reasonable inquiries of any person, orally or in writing;7. Take any other action necessary to effect the inspection;8. Require a person to produce for inspection any record of information that relates to a hazardous substance, a 9. pesticide, a special waste or a contaminant that has caused an adverse effect; andWithout a warrant or court order, seize anything that’s produced or that’s in plain view during an inspection if 10. they reasonably believe that there has been a contravention of the Act or the regulations and that the thing will afford evidence of the contravention.

Environment Act, Secs. 151(1), 151(5) and 155(1)

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WinneRs & LoseRs

The federal Transportation of Dangerous Goods Act and the provincial/territorial equivalents require vehicles transporting dangerous goods to display placards indicating the kinds of goods they’re carrying and the hazards those goods pose. As with other environmental and safety requirements, companies can avoid liability for placard violations by relying on the due diligence defence. The following cases illustrate the factors courts consider in evaluating whether a company exercised due diligence to comply with TDGA placard requirements.

What constitutes due diligence for complying with tdGA Placard Requirements?

due diLiGence

FActsA company was convicted of failing to display the number of safety placards required by Ontario’s Dangerous Goods Transportation Act. It appealed, arguing that it had exercised due diligence to comply with the placard requirement.

decisionThe Ontario Provincial Court overturned the conviction, ruling that the company had exercised due diligence.

eXPLAnAtion The court explained that a company can establish due diligence if it can prove that it created controls and mechanisms specifically to prevent this violation. In this case, the company had such controls and mechanisms in place:

It trained drivers on the Act’s requirements, the different classifications 77and divisions for dangerous goods and what to look for when picking up such goods, such as documentation, placards, etc.;

Drivers had to pass a test on their training to get a certificate and 77submit to retesting every two years thereafter;

The company posted bulletins on the Act’s requirements on an 77ongoing basis; and

It required drivers to check their vehicles before leaving the terminal 77and every time they exit the vehicles and to stop at least once every 150 miles or two hours to make sure that no placards were missing.

So the court concluded that the company had demonstrated “more than a reasonable degree of diligence in its attempts to see that” this type of offence didn’t occur. 7

R. v. Motorways (1980) Ltd., [1989] O.J. No. 3081, June 23, 1989

no due diLiGence

FActs

A tractor trailer hauling dynamite got into a traffic accident. During

the subsequent inspection, officials discovered that the truck didn’t

have the proper dangerous goods placards affixed to it. The trucking

company was charged with violating the TDGA placard requirements.

decision

The Yukon Territorial Court convicted the company, ruling that it hadn’t

exercised due diligence.

eXPLAnAtion

The company’s defence to the violation was that it couldn’t watch its

drivers “24/7” and so it relied on them to comply with the placard

requirements. But the court said that simply relying on the drivers to do

what’s required for compliance isn’t enough to constitute due diligence

to comply with placard and other TDGA requirements. A company must

have some “system of oversight” of its drivers to ensure compliance,

explained the court. And this company didn’t have such a system. 7

R. v. 16142 Yukon Ltd., [2009] Y.J. No. 182, Oct. 7, 2009