CONTENTS

ENVIRONMENTAL LAWYER JOINS W&SEL

W&SEL welcomes Juli Abouchar to the firm. Juli was Assistant Commission Counsel to the Walkerton Inquiry, and has expertise in environmental planning, water law, and groundwater protection. Juli has practised environmental law since 1994 when she was called to the Bar in both Ontario and New Brunswick. Juli has taught environmental and natural resources law at the U.N.B. Faculty of Law and at Ryerson University. She holds an LL.M. degree in Environmental Law from the University of London, and an undergraduate degree in earth sciences from University of Waterloo.

Direct Line: (416) 862-4836
Email: jabouchar@willmsshier.com

LIMITATIONS ACT, 2002

Drastically Shortened Deadlines

On January 1, 2004, the deadline to launch a civil lawsuit will be drastically shortened under the Limitations Act, 2002.

Plaintiffs will lose the right to sue after two years, down from the current six years. For environmental lawsuits, the time begins to run from the date of contamination, or discovery if later. There is no ultimate limitation period for undiscovered environmental claims.

Due Diligence Implications

The restrictive two-year deadline means that plaintiffs will have to respond quickly to the discovery of contamination of drinking water, property or buildings. Lawyers and consultants will be pressed to investigate, write conclusions and reports and launch lawsuits in record time. Companies and municipalities must train staff and implement systems to notify decision-makers as soon as anyone discovers contamination. For example, if a contractor reports contamination to the corporate maintenance or public works staff, that report starts the clock. Prompt follow-up is needed to preserve the right to sue and recover damages from the person who caused the contamination.

AIR / ODOUR COMPLIANCE & ENFORCEMENT

STAC May Trigger Updates

MOE's ongoing STAC (Strategic Targets for Air Compliance) program requests that selected companies prepare and submit updated air emissions inventories for all sources, including fugitives.

MOE STAC demands have uncovered non-compliances leading to orders and previously unapproved sources requiring new approvals. In addition, the MOE may invoke its Approval Update Protocols to rewrite existing approvals to more stringent standards, or to impose new, site-specific standards for unregulated substances. If your facility receives a STAC demand, please call Doug Petrie or John Willms for legal advice on how you should respond.

MOE Pushes For Strict Limits

Confusing and frustrating are how many manufacturers are describing MOE's latest demands for air and odour approvals. MOE's conflicting dispersion modeling requirements have forced more of our clients to appeal control orders or stringent approval conditions based on speculative modeling results. In one case MOE even laid charges (subsequently withdrawn) based on modeling predictions. In some cases the MOE has simply reverted to requiring applicants to show compliance using the 30-year-old Reg. 346 compliance algorithm.

MOE Stuck on 1 O.U.

Meaningful measurement and regulation of industrial odours is currently complex and uncertain. MOE's suggested guideline is one odour unit (10 minute average) at the most impacted sensitive receptor. This means that 50% of the 'trained noses' on a qualified Odour Panel can smell something. Manufacturers argue that this is an arbitrary target, and is not equivalent to an adverse effect. Moreover, in many cases it is not economically viable or technically achievable.

One odour unit is difficult to measure. Current air dispersion modeling for odours is complicated and inexact. Moreover, MOE odour enforcement is driven by neighbour complaints, not by modeling results.

Urban development pressures and some bad planning decisions have permitted residential development ever closer to industrial areas, resulting in more complaints. Mixed uses, such as daycares in industrial settings also raise concerns. When multiple facilities emit odours in the same neighbourhood, it is difficult to sort out what is offending whom, and when. As a result, the MOE is currently involved in prosecutions, orders and certificate of approval appeals concerning compliance standards for, and adverse effects from odours.

MOE's program to update its dispersion models has fallen behind schedule. The proposed MOE guidance document process is bogged down. MOE wants to adopt leading edge dispersion models to determine compliance for issuing certificates of approval. Dispersion modeling, especially for odours, is a complex and inexact science, often with large discrepancies between actual measured results and those predicted by models. Dispersion models are used by MOE to determine worst-case scenarios for compliance. In fact, MOE is said to want to jump ahead of the US EPA and adopt the leading edge AERMOD Prime beta model (expected to be approved this fall).

It looks like it will be some time yet before the MOE manages to 'clear the air' and come up with a predictable and uniform modeling policy for Ontario industries and institutions. Developing clear and certain regulatory standards for industrial odour compliance in Ontario is a work-in-progress that is going to take time, effort, science and goodwill to resolve. Unfortunately, it is proving costly for companies who are guinea pigs in the current stage of development.

UPDATE - ASBESTOS IN VERMICULITE INSULATION

US EPA Issues Consumer Alert

Real estate agents, home inspectors, lenders and lawyers should take reasonable steps to protect vendors and purchasers of commercial and residential property.

In our last issue we reported on concerns about tremolite asbestos contamination in Zonolite vermiculite insulation. Many residential attics and commercial ceilings contain Zonolite. On May 27 the US EPA published the consumer bulletin "Current Best Practices For Vermiculite Attic Insulation - May 2003." It cautions consumers not to disturb vermiculite attic insulation, and to prevent any access to open attic spaces. If remodelling or renovations could disturb the insulation, trained and certified asbestos professionals should be hired to safely remove it.

ENGAGEMENTS OF NOTE

Marc McAree will be speaking on Environmental Litigation: The Latest Word from the Courts and Tribunals at the Canadian Institute seminar entitled What's New in Environmental Law & Regulation in Ontario on October 15, 2003.