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Environmental Law Article

This article appeared in The Lawyers Weekly (February, 1999).

Bill 82 Extends Municipal/Corporate Liability For Waste Handling, Disposal

Barry N. Spiegel is an environmental, municipal and planning lawyer and webmaster at the Toronto offices of Willms & Shier. Email comments and questions to

Extended corporate and municipal liability for waste handling and disposal, more stringent penalties and increased enforcement powers under Ontario's EPA, OWRA and Pesticides Act became law when Bill 82 was proclaimed on February 1, 1999. Controversial administrative monetary penalty (AMP) provisions authorizing administrative fines in lieu of prosecution, will not take effect until implementing regulations are passed. The Environmental Statute Law Amendment Act, 1998 seems designed to position the government as a strong proponent of environmental protection.

Superfund-Style Liability

Most significant for companies and municipalities is the extended liability for waste consignment, handling and disposal. Waste generators can be prosecuted for unlawful disposal of waste by their subcontractors, and for using unlicensed waste haulers, handlers or disposal sites. Generators can also be ordered to clean up and restore sites where their waste has been illegally disposed. This moves Ontario closer to the complex and onerous U.S. Superfund model. Companies and municipalities will have to ensure that all waste will be handled by haulers with appropriate waste management system certificates of approval. They will be responsible for ensuring (and documenting) that waste is disposed of at waste disposal sites (including transfer stations and recycling facilities) that hold appropriate certificates of approval. Generators should review their waste disposal policies and procedures in light of the changes. Maintaining proper documentation will be essential for proving due diligence.

The administrative monetary penalty (AMP) provisions will be implemented by a regulation setting out which offences it will apply to and a penalty structure. The maximum penalty will be $5,000 per day, and if the fine is paid, no charge can be laid for the same event. Penalties can be appealed to the Environmental Appeal Board. Critics note that the due diligence defence may not be available - the MOE argues that administrative penalties are civil remedies, and that the Charter will not apply. MOE officials do not expect to implement AMPs before the spring of 1999 - many outstanding policy and practical issues remain.

Electioneering Legislation

The government pushed Bill 82 through the Legislature in less than a month. Does this signal a renewed commitment to environmental protection, or just-in-time legislative spin-doctoring? Many of the Bill 82 amendments have a respectable history. Stricter penalties and expanded inspection powers have been under development for at least five years under the working title "Powers and Penalties" amendments. Some of the extended waste handling changes were introduced last year in a private member's bill proposed by Bud Wildman, former NDP environment minister. AMPs have been under development for years.

However, current MOE budget, staffing and downloading make Bill 82 amendments look like a public relations band-aid. Critics point to the significant MOE budget cuts in the past few years. A Canadian Environmental Law Association report notes that MOE staff was slashed by 36% from 1995 to 1998. Current rumours predict an additional 30% budget cut for MOE after the election.

Nuisance Now A Municipal Problem

The MOE continues to back away from enforcement by downloading responsibility onto municipalities. MOE resources are spread thin, and enforcement activities are reserved for highly visible or notorious problems.

The MOE has stated its inability and unwillingness to monitor and regulate local nuisance impacts. The Minister of the Environment baldly stated this in a letter quoted in the recent Hamilton Harbour Commissioners v. Hamilton (City) (1998), 36 O.M.B.R. 485 O.M.B. decision. The City of Hamilton removed animal rendering plants from the list of permitted industrial uses. Despite representations from the rendering industry that sophisticated technology controls adverse odours, the MOE joined local residents and the municipality in their skepticism of "odour free" rendering plants. According to the Board, the MOE had little confidence in its ability to monitor or regulate the rendering industry, both because its resources were stretched to the limit, and because MOE is "devolving itself of the responsibility to monitor this aspect of the industrial approval process." As evidence, the City produced a letter it had received from the MOE regarding a matter of noise pollution, stating:

"It is the position of the Province and the Ministry of Environment and Energy that municipalities are best equipped to address noise, odour and dust problems. It is incumbent on area authorities to set and enforce by-laws to address issues of concern to local residents and businesses. In the absence of appropriate by-laws, it is the responsibility of local officials to consider provincial guidelines and arrive at effective solutions."

Municipal powers to regulate environmental nuisances are likely to be enhanced in the proposed Municipal Act, which is still undergoing consultation. Municipalities will not only be able to pass, and enforce these by-laws, but will also be able to keep the fine revenues. Or at least apply those revenues towards paying for the provincial offences enforcement machinery acquired under the Streamlining of Administration of Provincial Offences Act, 1998 (Bill 108). Municipalities will have a financial incentive to pass and enforce environmental nuisance by-laws. Of course, that incentive will be offset when the emitter of the nuisance is a major local employer. Local environmental protection will be increasingly subject to local politics.

When introduced, AMPs will require significantly less government resources than investigations and prosecutions. It remains to be seen whether AMPs will provide more consistent enforcement of environmental laws, or merely act as licences to pollute.

Environmental critics have been joined by many environmental professionals in the belief that Ontario's failure to maintain consistent abatement and enforcement resources will be bad for business, destroying the level playing field and removing incentives for development of environmental technologies. Given the MOE's decreasing ability and willingness to enforce, the rush to pass Bill 82 seems cynical and misleading.

To comment, call Barry Spiegel in Toronto at (416) 863-0711 or send email to

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