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WILLMS & SHIER MUNICIPAL / CORPORATE REPORT For environmental law news, commentary and
downloads visit our Online Compliance Centre – www.willmsshier.com/compliance/. |
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SUMMER 2002 |
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Compliance / Approvals · MOE Approval Update Protocol Requires Strategic Approach |
Law / Regulation
·
Nutrient
Management Regulations
·
Environmental
Emergency (E2) Plans Regulation Published |
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W&SEL
Environmental Law |
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Congratulations · Virginia MacLean, Q.C. President of OBA |
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Industrial facilities in Ontario
must maintain MOE certificates of approval for all activities regulated under
the Environmental
Protection Act (EPA) and the Ontario Water Resources Act (OWRA). The
MOE has the power to require changes, and has published four Protocols,
describing the campaign elements for air, sewage works, waste management and
water works. Impact Of Update Review An MOE update review can have significant and costly results. It may
trigger new emission inventory or data requirements, impose new, stringent
emission or discharge limits, require new monitoring and reporting
obligations and capture existing unapproved sources. An update review may also result in identification of compliance
problems that could lead to MOE orders or program approvals. Many facility certificates of approval may be years (or even decades)
old, and out of date due to changes in the facility or to current
environmental standards. Some facilities have old equipment or processes that
do not have any approvals. Companies may need to change processes and procedures, install new
pollution control equipment, or negotiate new program approvals or orders.
Additional Certificate of Approval Fees will also apply. In some cases MOE may request that a facility consolidate all of its
air approvals into a site-wide Basic Comprehensive Certificate of
Approval that captures all emission sources. MOE has developed a template for
this flexible site-wide air approval that allows limited changes without
requiring a new or amended certificate. MOE’s rationale for the update program is that current certificate holders should bring emissions
into line with the up-to-date standards that apply to new applicants.
However, the MOE policy document recognizes the economic penalties for
long-approved companies. There will be some room to negotiate where the cost
of meeting current standards will impose hardship. Udpdate Review Triggers The MOE has
identified four triggers for an update review ·
Application to amend an existing certificate ·
MOE inspection, investigation,
enforcement ·
MOE target-sector review program (e.g.
STAC air compliance program) ·
Review triggered by public demand
under Environmental
Bill of Rights. Targets Likely targets of MOE review include, ·
Industries processing or disposing of
waste on-site (Waste Management Protocol); ·
Select Targets for Air Compliance
(STAC) or similar MOE programs (Air Protocol); ·
Facilities with on-site wastewater treatment not
discharging to municipal sewers (Sewage Works Protocol) ·
Municipalities (Sewage Works and Water Works Protocols). Strategy And Planning
When seeking minor amendments to existing certificates, consider the
potential scope of an update review. Before submitting your application,
identify unapproved equipment and processes, and consider whether they will
be eligible for approval or may have to be improved or shut down. Plan accordingly. This may require
postponing amendment applications or planning new pollution control measures.
If your facility meets any of the triggers, you should identify any other compliance vulnerabilities and plan accordingly. Negotiation And Advocacy Update reviews may result in extensive or expensive new requirements,
particularly where previously unapproved sources or non-complying sources are
involved. Willms & Shier Environmental Lawyers assists in due diligence
planning prior to updates or applications for approval, by identifying and
interpreting regulatory requirements. Solicitor-client privileged
investigation of potentially non-complying sources allows clients to activate
a due diligence plan and make disclosures in a controlled and timely manner. We work with clients to achieve balanced and fair results when
negotiating with the MOE. Where negotiations fail, and where justified by
costs or consequences, we achieve acceptable results through the legal
processes of appeal and judicial review. Download the Protocols from our Online Compliance Centre. |
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The first phase brownfield regulations have been posted for
consultation. These provide municipalities and secured creditors with more
specific details on limiting their liability. Much more work remains before
the qualified person and clean-up regulations are ready. Download the draft
regs from our Online Compliance Centre. Nutrient
Management Regulations Posted Ontario Ministry of Agriculture
and Food (OMAF) posted first stage regulations for nutrient management,
including a draft Nutrient Management Plan and Nutrient Unit guides. Province-wide nutrient management
standards will override local by-laws. OMAF is responsible for the standards,
while MOE will enforce. Download the regulations and documents from our Online
Compliance Centre. Environmental Emergency Plan Regulations—CEPA
Draft E2 Plan regulations were published
in Canada
Gazette 1, August 10, 2002. In 2003 some 1,500 industrial
facilities will need to file notices and implement Environmental Emergency
Plans for each of 174 substances stored or used in amounts exceeding
listed thresholds. The comment period expires October 10, 2002. For
details: |
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M.
Virginia MacLean, Q.C. became President of the Ontario Bar Association
on August 15, 2002. This builds on her years of dedicated service
to improving professional knowledge and skills of practising lawyers.
Congrats Virginia! Best wishes to former W&SEL lawyers Kirk Walstedt and Jim Renick. |
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W&SEL Lawyers In Demand This year’s series of successful courses and conferences delivered by
Willms & Shier Environmental Lawyers has meant increased demand by
companies and municipalities for our environmental law, compliance and due
diligence training. We have developed and delivered training on corporate
environmental compliance, due diligence for managers and supervisors,
emergency reporting and response, preparing for and managing investigations,
and environmental law training for environmental auditors. For information on in-house training
for executives, environmental professionals, managers, supervisors and
front-line personnel call or email Barry Spiegel
(416-862-4837), bspiegel@willmsshier.com. |
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This fall will be
knowledge-intensive! Marc McAree: Municipal
Liability, Canadian Institute, September 23rd, 2002. Donna Shier: Water
Environment Association of Ontario (WEAO), September 26, 2002. Doug Petrie, Marc McAree,
Donna Shier and Tony Fleming: Environmental
Law For Practising Professionals, Ontario Bar Association (OBA), October
21, November 4, 18, 2002. Doug Petrie and Tony
Fleming:
Environmental Regulatory Update 2002 and Tanks Workshop, Canadian
Institute, October 21-23, 2002. John Willms and Doug
Petrie: Industrial Wastewater Issues, EMRCB (London, Ontario),
with Beak International, October 30, 2002. Doug Petrie and Tony Fleming:
Industrial Air Emissions Course (Templegate) with RWDI, November 19,
2002. Donna Shier: Canada Water
Quality Management Program (IQPC), November 20, 2002. Virginia MacLean and
John Willms: Making Over The Body Politic, the Municipal Act, 2001, OBA, November 22,
2002. For more information
visit our Online Conference
Centre at: http://www.willmsshier.com/compliance/ or email: bspiegel@willmsshier.com |