Spills Bill 133 Passes
- Willms & Shier Environmental Law Flash

(a) change the use of a property from industrial or commercial use to residential or parkland use;

(b) change the use of a property in a manner prescribed by the regulations; or

(c) construct a building if the building will be used in connection with a change of use that is prohibited by clause (a) or (b).

(a) a record of site condition has been filed in the Registry in respect of the property under section 168.4; and

(b) the use specified under paragraph 3 of subsection 168.4 (2) in the record of site condition is the use to which the property is changed under clause (1) (a) or (b).

Ontario's New Air Emissions Regulation Posted
Tougher Air Emissions Regime Coming

A completely overhauled Regulation 346 and updated air emissions regulation regime is coming to Ontario. After a year of intensive stakeholder consultation, the MOE has posted its proposed new Regulation 346 for comment until June 4, 2005. The new Regulation will likely be promulgated to take effect on November 30. 2005, and will be phased-in over 15 years.

The new regualtory regime will "introduce effects-based air standards with variable averaging times, new air dispersion models, and the adoption of a risk-based process for alternative standards to address implementation issues related to new standards and/or new models." Phase-in of the new regime will begin this year, and will immediately affect air approvals for some"greenfield" facilities.

Download the EBR posting and the new Draft Regulation 346.

A risk-based alternate approval process will be available to facilities that will not be able to bring existing operations into compliance in time.

Beginning in 2010, existing facilities in designated sectors will have to demonstrate compliance using the new US EPA dispersion models, monitoring results or a combination. Mandatory anuual ESDM requirements will also apply.

Ontario Court of Appeal: Minister Can 'Scope' Environmental Assessments
Appeal to SCC Means Uncertainty May Continue

Ontario's Court of Appeal has upheld the right of Ontario's Environment Minister to tailor the requirements of the Environmental Assessment Act (EAA) to a particular project. This should remove the roadblock that had paralyzed many EA projects since the June 2003 decision of the Divisional Court in Sutcliffe v. Canadian Waste Services Inc. and MOE.

However, Rick Lindgren of CELA, counsel for Sutcliffe, told us that his clients intend to seek leave to appeal to the Supreme Court of Canada. This could leave projects subject to the EAA in limbo for at least the next six to eight months. Proponents of waste disposal, transportation, transit and renewable energy projects should not expect relief any earlier. It will take at least that long for Environment Minister Dombrowsky to receive and implement recommendations from the advisory committee she appointed in June to fix the EAA.

In June 2003, projects in the EAA pipeline were sideswiped by the Divisional Court decision in Sutcliffe. The Court held that 1997 amendments to the Environmental Assessment Act (EAA) did not allow the Minister of the Environment to permit proponents leave out generic requirements of the Act, even if not relevant to the proposed project. This decision cast doubt on the legal validity of all projects where Ministers had scoped the EA requirements in approved terms of reference. Proponents did not know whether to try to conduct and insert missing parts of EA studies, start from scratch, or wait for the courts to sort it out.

The Court of Appeal decision (August 25, 2004) affirmed the right of the Minister to exercise discretion to customize the EAA process, so long as the Minister is satisfied that the final environmental assessment will be consistent with the purpose of the EAA and with the public interest. This is consistent with the scheme of the Act. Responsibility for the final balancing of social, political and environmental factors rests with the government, through ministerial discretion and Cabinet appeals.

The extent of flexibility accorded to future projects will vary according to the policies and politics of individual ministers, and how they choose to exercise their discretion. For example, the Richmond Landfill expansion,the subject of the Sutcliffe decision, is located in Environment Minister Dombrowsky's riding. The terms of reference for the proposed Richmond Landfill expansion were approved by a previous Minister of the Environment. Prior to her election, Minister Dombrowsky opposed the Richmond Landfill expansion.

The Court of Appeal decision means that the terms of reference for the EA of the Richmond Landfill expansion are valid, and Waste Management (formerly Canadian Waste) can move forward.

Download the Court of Appeal and Divisional Court decisions from our Online Compliance Centre at www.willmsshier.com

Fisheries Act Conviction Makes Water Pollution Charges Tougher To Defend
Environmentalists, Residents, MOE Succeed in Coordinated Fisheries Act Prosecution

Fisheries Act charges for water pollution will be harder to defend in the wake of a May 2004 Ontario Court of Appeal decision. The Court upheld the conviction based on evidence that landfill leachate killed fish in lab tests. The Crown did not need to prove that the leachate would have been toxic in the river, or that it would have killed the specific kinds of fish that inhabit the river.

The Court upheld the conviction of the City of Kingston for allowing landfill leachate to seep into the Cataraqui River. The City was convicted after a 25 day trial. The City’s Director of Environmental Services and Engineering was also convicted.

Local residents, environmentalists and the MOE worked together to prosecution. Charges were laid both by a private citizen and by the MOE. The Courts can award 50% of pollution fines to citizens who successfully prosecute under the Fisheries Act.

In the Kingston case, the Court of Appeal held that the test for water pollution under the Fisheries Act is stricter than the Ontario Water Resources Act (OWRA) test that the Appeal Court articulated in its 2001 INCO decision. [read more]

In INCO, the Court of Appeal ruled on the test for impairment of water quality under the OWRA. Where any quantity of a substance that is “inherently toxic”, such as PCB, is discharged, it will be deemed to have impaired the quality of the water. However, if the substance is not “inherently toxic”, the Court will have to hear evidence of the circumstances of the discharge to determine whether the quality of the water receiving the discharge was impaired in light of the quantity and concentration of he substance and duration of the discharge.

The Fisheries Act, prohibits anyone from depositing a deleterious substance in water frequented by fish. The Act defines deleterious substance as

any substance that, if added to any water, would degrade or alter or form part of a process of degradation or alteration of the quality of that water so that it is rendered or is likely to be rendered deleterious to fish or fish habitat or to the use by man of fish that frequent that water

The Court of Appeal explained the difference between the pollution prohibitions in the two laws.

The focus of the pollution provision of the Fisheries Act (s. 36(3)) is on the substance and whether or not it is “deleterious” when added to water. In other words, if the substance is added to any water, will the resulting mixture endanger fish, fish habitat or human use of fish? In this case, the Court accepted the results of the acute lethality tests for rainbow trout fingerlings, conducted according to the Environment Canada reference protocol. When the leachate was added to water, the mixture was lethal to the test fish, thus the leachate was deleterious for the purposes of the prosecution under section 36(3) of the Fisheries Act. It was not necessary to consider the nature of the leachate, or the quantities or concentrations discharged, to determine the impact on the receiving water.

In contrast, the OWRA prohibits the discharge into water of materials that may impair the quality of the water receiving the discharge. Where a substance is not inherently toxic, the Court must consider the evidence of nature of substance and quantity and concentration of the substance discharged, in order to determine whether the quality of the receiving water was impaired.

The Court in City of Kingston noted that in a Fisheries Act prosecution, it is open to the prosecutor to use evidence of the nature, quantity and concentration of the substance to prove that a substance is deleterious. However, this is a matter of proof, rather than a necessary component of the test.

The City of Kingston decision increases the due diligence standard for owners of landfills and for others who control or cause effluent discharges into water that may contain fish.

Drinking Water Relief
MOE Proposes Relief For Small Systems

Owners and operators of small drinking water systems have been concerned about the cost of complying with the Safe Drinking Water Act, 2002 and regulations.

On May 12, 2004 the MOE posted a proposal to amend the Drinking-Water Systems regulation (O. Reg. 170/03), to postpone a number of deadlines for installation of treatment systems or commencing testing.

The proposal would also clarify (and limit) the application of regulation to food premises. Generally, food premises that do not prepare and serve meals and do not provide access to the public will not have to comply with treatment obligations for their process water.

MOE has prepared a comparision document to show how the proposed amendments will fit into the Drinking-Water Systems Regulation.

The MOE summary of the proposed amendments states:

• Provide an extension for the July 1, 2004 deadline for installation of treatment equipment to December 31, 2004 for large municipal non-residential, large non-municipal non-residential and non-municipal year-round residential systems that do not serve a designated facility and that obtain water from a surface water supply;
• Provide a sign posting option to small municipal non-residential systems, until December 31, 2004 instead of testing;
• Improve the sequence of prescribed corrective actions for adverse water quality to allow more flexibility in responding to a problem immediately;
• Change definitions to clarify the application of the regulation to certain food premises; and
• Provide an extension for the July 1, 2004 deadline for large municipal non-residential systems, large non-municipal non-residential systems and, non-municipal year-round residential systems on groundwater, and the December 31, 2004 deadline for small non-municipal non-residential systems for giving notice to the Ministry regarding the system owner’s intention to comply with treatment, apply for relief from treatment or to post warning notices to June 1, 2005.

Corporate Criminal Liability Proclaimed
Westray Bill C-45 Now Law

Extended liability for individuals and organizations will affect operations where accidents can harm public or workers

The Westray amendments to the Criminal Code (Bill C-45) took effect on March 31, 2004. The amendments expand the scope of criminal liability for negligence by companies, “organizations” and individuals, where workers or members of the public are injured or killed.

A new legal duty is imposed on every individual who supervises or directs workers, to take reasonable steps to prevent bodily harm to workers or the public. Everyone, from corporate directors to lead hands and foremen, can be personally charged with criminal negligence for an accident, explosion or spill that harms the health of any human.

Although Bill C-45 does not extend criminal liability for environmental harm, it raises the stakes for everyone who supervises work that could result in injury to the public. In the event of an accident that results in personal injury, everyone who supervises workers at a water treatment plant, an explosives factory or a chemical company could be criminally liable for negligence.

A Criminal Code conviction is more serious than a health and safety or environmental charge under Ontario’s Environmental Protection Act or Occupational Health and Safety Act, or similar regulatory laws in other provinces. Criminal Code fines can be higher, and jail terms are more common. A person convicted of criminal negligence could face life imprisonment. Moreover, a Criminal Code conviction carries the stigma of a criminal record, unlike a provincial offence.

The amendments also make it easier for the Crown to charge and convict “organizations” with criminal offences for the negligence of officers, employees, agents or contractors.

The changes imposed by Bill C-45 place a critical focus on the need for all decision-makers to respond aggressively to deficiencies that could result in accidents. Management needs to monitor safety and environmental management systems. Deficiencies and violations must be corrected promptly and thoroughly. Agents and contractors must be accountable and must comply company policies and systems. Employees need training. Actions must be documented.

Many responsible companies will not need to change anything. However, those who are sloppy or reckless are at risk.

Source Water Protection Planning Law - White Paper Issued

The MOE published a White Paper on Watershed-based Source Protection Planning on February 12, 2004. The White Paper provides a rough, conceptual proposal for legislation that will require source protection plans to be developed regionally and implemented locally for every watershed in the province.

The White Paper follows the recommendations of the Walkerton Inquiry and the Source Protection Committee (2002-2003). The paper implies that all municipalities in a watershed will have to buy in to these plans, and the plans will have to be approved by the Minister. The White Paper is unclear about what the Plans will authorize or prohibit, and how they will interact with other planning laws, constraints and environmental approvals, such as local and regional official plans, local by-laws, nutrient management plans and strategies and Environmental Protection Act approvals for waste disposal and biosolid spreading.

The planning process would involve public and stakeholder consultation as well as consultation cooperation between municipalities with the local and regional watersheds. Each source protection planning process would have to develop, then follow "terms of reference" containing a process roadmap. The proposed planning framework involves several layers of organization, including individual watershed Source Protection Planning Boards, and regional Source Protection Planning Committees. Conservation authorities will be major players, with the more experienced and well-staffed authorities expected take leadership with a region. Plans.

The White Paper acknowledges the collection and analysis of the technical data needed to "support" the plans, but does not identify the source of the money that "key stakeholders" will need to develop and analyze the information.

The White paper also includes discussions on clarifying the rules surrounding water-taking permits and the factors to be considered in designing a system of water-taking charges. The MOE needs to resolve these issues before lifting the moratorium on commercial water taking. Public consultation meetings are scheduled across the province from March 1 through 23. Deadline for written submissions is April 12, 2004. Download the White Paper from our Online Compliance Centre (www.willmsshier.com/compliance/).

Province Proposes Urban Sprawl Controls
Planning Act, Golden Horseshoe Moratorium and Bill

In December, Ontario's Minister of Municipal Affairs proposed important changes to the Planning Act that will have retrospective effect across the Province. The Planning Act changes will strengthen the power of municipal and provincial authorities to control development, and restrict the power of the Ontario Municipal Board (OMB). In addition, the Minister imposed a moratorium on land use and introduced an important Bill to address urban sprawl in the Golden Horseshoe.

The Legislation

Strong Communities (Planning Amendment) Act, 2003 (Bill 26): These amendments to the Planning Act will be retroactive to December 15, 2003. They will amend s.2 of the Act to require that municipal decisions be "consistent with" Provincial Policy Statements. Appeal periods relating to official plans, subdivisions, zoning by-laws, holding by-laws and consent applications will be extended to provide municipalities more time to review applications and consult with the public. The powers of the OMB will be restricted where making orders or decisions in an appeal respecting the official plan, zoning by-law or holding by-law if the Minister believes that the proposed amendment adversely affects a matter of provincial interest.

Greenbelt Protection Act, 2003 (Bill 27): The Bill establishes a greenbelt study area and restricts municipal powers under the Planning Act relating to land outside an urban settlement area in the Golden Horseshoe. The Bill affects all applications and procedures under s.17, s.22, s.34, s.36, s.38 or s.39 or s.51 of the Planning Act respecting these lands. Click here to download the First Reading version of Bill 27.

Moratorium on Land Use in the Golden Horseshoe: On December 16, 2003, the Minister issued a zoning order under the Planning Act filed as O. Reg. 435/03. The Order prohibits urban uses outside urban settlement areas in the Golden Horseshoe while the Greenbelt Study under Bill 27 is being undertaken. The moratorium does not apply to the Niagara Escarpment and the Oak Ridges Moraine area or certain areas in Pickering and Markham. Click here to download O. Reg. 435/03.

Summary: The intent of the legislation and the companion zoning order is to control development in the agricultural and rural areas of municipalities in the Golden Horseshoe until the Greenbelt Study has been completed.

Divisional Court Limits Ottawa Hog Farm Conversion
Ottawa (City) v. Chief Building Official (Ottawa) – Ontario Divisional Court, released November 21, 2003

The Divisional Court decision deals the following questions:

1. Whether environmental statutes (EPA, OWRA and Fisheries Act) must always be considered as part of "other applicable law". The Divisional Court's decision is no, not in every case.
   
   
2. If these environmental statues are not automatically "other applicable law", can they be applied to some fact situations to prohibit the issuance of a building permit as other applicable law? The Divisional Court held that where, on the facts, there is a clear nexus with the purposes of the Building Code Act (BC) - namely with the construction or demolition of structures, then the environmental statutes could constitute other applicable law.
   
   
3. Whether the change from a dairy farm to a hog farm is a change in use that is sufficiently different in character to lose the benefit of the right to a legal non-conforming use. Judge Roy decided on the original application that the change in use was significant enough to no longer maintain the rights to a legal non-conforming use. The Divisional Court found Judge Roy's decision to be reasonable, and dismissed the appeal.

Facts:

Quebec's biggest hog farmer bought a dairy farm in Ottawa. The same family had run the dairy farm for 4 generations.

The hog farmer applied for a building permit to do the construction necessary change to hog farming, and to significantly increase the size of the livestock load (from about 209 cows to about 3,000 sows - about two to three times the number of livestock units).

After the hog farmer applied for the building permit the City passed an interim control by-law, prohibiting intensive livestock operations in the City (i.e. no more than 750 sows).

The farmer took the position that the hog farm would be a legal non-conforming use, and that the equivalent of 209 cows would be 1,045 sows, and the farmer applied for a new permit to convert to a hog farm for 1,045 sows - about 300 more than permitted under the interim control by-law. The farmer prepared and obtained approval of a Nutrient Management Plan for the 1,045 sow farm.

The Chief Building Official issued the permit. The City appealed, and Judge Roy dismissed objections that the EPA, OWRA and Fisheries Act would be breached by the farm operation, thus prohibiting the CBO from issuing the building permit. However, Judge Roy found that the change of use from a dairy farm to a hog farm was significant enough that the farmer could not claim it was a legal non-conforming use. As a result, the farmer had to comply with the maximum limit in the interim control by-law of 750 hogs.

Supreme Court of Canada
Imperial Oil Decision No Surprise

When residents discovered contamination years after the clean-up, they sued the Ministry for negligence. Under the spectre of these lawsuits, the Minister of the Environment made the order against Imperial, requiring the company to investigate and identify the pollution, and recommend corrective actions. Ultimately, Imperial will be ordered to carry out the recommendations and clean up the contamination.

Imperial appealed the Minister's order on several grounds. Imperial argued that its pre-1979 operations had met the standards of the day. Moreover, Imperial argued, the 1987 clean-up had complicated the situation and likely increased the costs of the characterization study and any resulting restoration work that would subsequently be required.

The Quebec Court of Appeal dismissed these objections finding that the order was within the jurisdiction of the Minister under Quebec environmental law statutes. The Supreme Court of Canada did not entertain an appeal of the Court of Appeal's decision on these grounds. Commentators suggest this means that provincial Ministers can issue clean-up orders against polluters long after the property has changed hands. This also supports an Environment Minister's discretion to order the original polluting owner without including subsequent owners, and without considering the complications or cost implications of intervening clean-up activities.

The Supreme Court decision deals only with narrow grounds of appeal - was it fair for the Minister to make the order given that:

a) the Ministry had approved the 1987 clean-up; and
b) residents were suing the Ministry for negligence in supervising and approving the 1987 clean-up.

Imperial argued that the Minister had a conflict of interest, and could not act with impartiality. By making an order against Imperial, the Minister appeared to be trying to insulate the Ministry from its potential legal liability for the failed 1987 clean-up. Imperial argued that this was an abuse of power by the Minister.

The Supreme Court dismissed Imperial's appeal. The Court stated that the Minister was bound to employ procedural fairness when making orders. The Minister had to give notice and consider objections and comply with all procedural requirements of the statute supporting the order. However, a Minister of the Environment, when making a clean-up order, acts in the public interest under a statutory scheme for environmental protection. The Minister is not acting as a judge, and is not subject to the standards of impartiality applicable to a judge. The Minister has the discretion under Quebec environmental law to find the best way to compel the persons responsible to characterize and clean-up the contamination. While forcing Imperial to clean-up might allow the Minister to reduce or avoid damage awards in the lawsuits against the Ministry, the Minister was not acting in his personal interest. The Supreme Court stated:

"The only interests the Minister was representing were the public interest in protecting the environment and the interest of the State, which is responsible for preserving the environment…In exercising his discretion, the Minister could properly consider a solution that might save some public money. Accordingly, he applied one of the organizing principles of the Environmental Quality Act, the polluter-pay principal."

You can read the full decision of the Supreme Court of Canada in Imperial Oil Ltd. V. Quebec (Minister of the Environment) at http://www.canlii.org/ca/cas/scc/2003/2003scc58.html.

Ontario Cabinet - October 2003
The Executive Council of Ontario