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Municipal Report	Corporate Industry Report
Intensive Farming OMB Upholds Municipal Controls OMAFRA Protects Interim Control By-Laws Willms & Shier Clients Develop Intensive Farming By-Laws	Directors, Officers, Employees Beware Fisheries Act Prosecutors Target Individuals Moe Internal Memo Confirms Hard Line
Auditor's Warning MOE Neglects Financial Assurances	Airborne Emissions Reg. Airborne Emisions Reg Expected To Take Effect Jan. 1, 2000
Noise By-Law Void Guelph Noise By-law Void For Uncertainty	Hazardous Waste Reg. Alert: New Reg Takes Effect March 31 This Could Affect Your Waste Stream!
Engagements of Note Marc McAree Newest Partner in Willms & Shier Willms & Shier Welcomes New Lawyer Tony Fleming Willms & Shier Conference Chairs and Presentations

WILLMS & SHIER    MUNICIPAL REPORT

WINTER  2000

INTENSIVE FARMING

OMB Upholds Municipal Controls A recent decision of the Ontario Municipal Board (OMB) in West Perth Township supports municipal by-laws regulating intensive livestock farming. The municipality successfully defended its zoning by-law from an attack by the Ministry of Municipal Affairs (MMAH), who represented the Agriculture Ministry (OMAFRA).  The Ministries' opposition flies in the face of purported government concerns for municipal autonomy and local powers to protect the local environment. The government's appeal raises questions about  its commitment or ability to implement balanced rural planning and environmental policy.  Before the West Perth decision was rendered, OMAFRA promised to introduce clear, enforceable province-wide standards for agricultural operations.  "The time has come to take the best practices that many farmers are already using and turn them into strict standards for all agricultural operations in Ontario," Minister Hardeman said in July. "Farmers want across-the-board environmental safeguards to sustain agricultural productivity and rural Ontario's quality of life."  Legislation promised by this fall had not been introduced by mid-December. The OMB decision is notable for upholding zoning provisions that the Ministries called "arbitrary" - including a 600 livestock unit cap (e.g. 600 cattle or 3000 sows or 12000 broilers), and the requirement that farm owners own 30% of the land base needed to handle the manure output.  The by-law also requires intensive farming operations to have a nutrient management plan. The Ministries argued that existing policies and guidelines were adequate to promote good agricultural practices and pollution prevention. However, witnesses from both OMAFRA and the Ministry of the Environment (MOE) conceded that enforcement of nutrient management plans is a problem that has yet to be addressed. The OMB heard extensive evidence from local farmers and residents, who, the OMB stated, "sincerely want to farm in an environmentally safe manner and protect the quality of water.  There was, however, a difference of opinion as to how this can be accomplished and still retain the free enterprise system where farmers can expand their operations as they see fit in order to compete not only domestically but on the world market. It is clear, however, based on the Planning Act, the Provincial Policy Statements, etc, wide open expansion cannot be at the expense of the environment when health and safety of citizens is a priority." The OMB expressed support for municipalities: "… large factory farms … are a new phenomenon on the agricultural landscape and they bring new problems and risks that citizens are now turning to municipal councils and the provincial government for guidance. The municipality needs, and in the Board's opinion now has, planning tools available to regulate these large scale operations.  Municipalities also have the option available to pass an interim control by-law that can give them 2 years to study the matter." OMAFRA Protects Interim Control By-laws As we noted in the Summer 2000 issue, OMAFRA Minister Hardeman issued a Direction to the Normal Farm Practices Protection Board to withhold declarations where municipal interim control by-laws are in place. This gives municipalities the opportunity to conduct planning studies and pass appropriate intensive farming by-laws. Willms & Shier Clients Develop Intensive Farming By-laws Willms & Shier lawyers are currently working with several rural municipalities and their planners on intensive farming issues, including nutrient management by-laws, zoning by-laws and enforcement of Building Code controls over large livestock barns.

AUDITOR'S WARNING

MOE Neglects Financial Assurances From the Provincial Auditor's Report 2000: "Over $90 million in financial assurance, such as cash or collateral, was not obtained from facility operators as required under legislation and ministry policy. This poses significant financial risk to the province should the operators become insolvent and government funds then be required to clean up damages to the environment caused by the operators." Unfortunately, the Province suffers less than municipalities., who often end up with the  abandoned, contaminated land and no fund for costs.  Provincial funding for clean-up is rare. Willms & Shier assists our host municipality clients in ensuring that proper financial assurance is in place. Determining the amounts required under certificates of approval and obtaining the relevant data from the MOE can be complex.

NOISE BY-LAW VOID

Guelph Noise By-law Void For Uncertainty An Ontario Superior Court judge quashed the City of Guelph's noise by-law for failing to adequately describe the degree or nature of noise that would violate the by-law. The developer of a retirement sub-division was charged for ringing of Westminster Chimes in the clock tower of the recreation complex daily on the hour and half hour from 7:00 am to 10:00 pm. The developer end-ran the charges by petitioning the court to quash the by-law. The Superior Court of Justice (formerly General Division) held the following description to be void for uncertainty: "Noise means sound that is created by an activity set out in this by-law when such sound is of a volume that it annoys or disturbs or is likely to disturb the peace, quiet, comfort or repose of any person." Judge MacKenzie acknowledged that municipalities have clear jurisdiction to pass noise control by-laws. The Court found that the City's definition was not clear or specific enough. In His Honour's view, a 'reasonable inhabitant' might be uncertain as to whether a by-law enforcement officer could prosecute on a complaint by a neighbour who had different musical tastes, as opposed to a more objective test - that the noise is likely to disturb a 'reasonable' person. A by-law that confers unlimited discretion on municipal officials to lay charges based on their personal views is unenforceable for uncertainty. The result may be surprising, given the repeated support by the courts for the "adverse effect" language in Ontario's Environmental Protection Act.  In view of this decision, some municipalities may elect to pass by-laws based on the MOE Model Noise By-law, including specific decibel levels.  However, this option is more appropriate to control continuous noise encountered from industrial sources, rather than intermittent short duration sounds or occasional noisy events.  In addition, MOE style by-laws require ministerial approval, a process that we have found to be cumbersome and time consuming. In this case, Guelph settled the matter with the applicant's concurrence by passing a new noise by-law quoting the Municipal Act prohibiting noises "likely to disturb the inhabitants."  Unfortunately, this resolution has no judicial sanction and will not be reported.  The decision will stand on the books as law, discouraging municipalities from utilizing the Municipal Act power. We recommend that municipalities utilize both techniques.  A well crafted Noise By-law should include prohibitions of sounds "likely to disturb" and prohibit sounds that exceed  measurable levels recommended by the MOE.

WILLMS & SHIER    CORPORATE/INDUSTRY REPORT

WINTER  2000

DIRECTORS, OFFICERS, EMPLOYEES BEWARE

Fisheries Act Prosecutors Target Individuals Federal prosecutors have upped the ante in pollution prosecutions under the federal Fisheries Act. Environment Canada enforcement personnel have recently told us that they now believe that the most   effective way to achieve compliance is to educate individual employees that they are legally responsible and may well be personally  charged.  They indicated that their investigations now routinely include an analysis of individual actions as well as collecting evidence against the company. Personal charges may be laid even if the individual was acting on behalf of a company, and within the scope of his or  her corporate duties. Willms & Shier after-hours cell phone is (416) 802-0711. We can provide clients with quick legal response to emergency events such as spills and surprise investigations. MOE Internal Memo Confirms Hard Line Recently disclosed under Freedom of Information legislation, an internal MOE memo from March 2000 exposes the policy behind the control order crackdown we reported in the Summer 2000 issue of Willms & Shier ENVIRONMENTAL LAW (MOE To Make More Orders - Voluntary Deals Discouraged).  The MOE has been under increasing pressure to make more orders and lay more charges. The recent release of the Provincial Auditor's critique of the MOE's Operations Division has added fuel to the fire. The MOE memo calls for strict compliance with the MOE's Compliance Guideline F-2 (http://www.ene.gov.on.ca/envision/gp/F2.pdf). Abatement staff need to get written authorization from the District Manager to use voluntary abatement measures instead of orders. The underfunded and understaffed Ministry has responded to the pressure by issuing more 'provincial officer orders' (formerly known as 'field orders'). These orders are often drafted quickly and have short appeal periods. In some cases the MOE may still give you prior notice of intent to issue an order, and provide draft terms. If you are notified that MOE intends to issue an order, we urge you to call promptly for legal advice. We can often negotiate a reasonable scope of work and achievable deadlines before the final order is issued. If you receive an order, notify us at once. Appeal periods are short - failure to file an appeal on time leads to a loss of appeal rights.

AIRBORNE EMISSIONS REG

Airborne Emissions Reg Expected To Take Effect Jan. 1, 2000 MOE posted the draft regulation and guidelines intended to take effect January 1, 2001. There are 358 substances on the list. For most industries, monitoring, measuring or calculating should begin in January, with the first report due in June of 2002.  Some 'smaller' industries can defer  measuring until January 1, 2002. The onus will be on individual facilities to make the information available to the public upon request. Filing fees will apply, but have yet to be determined. About 3,500 facilities will be affected. Complying will be time-consuming, complex and costly, especially in the first year. Confidentiality may be a concern for some companies. The 265 page "Step By Step" Guideline sets out the details of who, what, when and where.  Reporting may be based on "estimates" that must be as accurate as source testing results. Calculations and measurements must be kept on file for seven years.  Visit http://www.willmsshier.com Latest News for commentary and links to the regulations and guidance documents.

HAZARDOUS WASTE REG

Alert: New Reg Takes Effect March 31 This Could Affect Your Waste Stream! Recent amendments to Reg. 347 will expand the number of wastes that will be subject to regulatory controls and transportation, handling and disposal costs. The amendments come into force on March 31, 2001. Many wastes currently treated as non-hazardous may be reclassified as a result of: a) the tougher Toxicity Characteristic Leaching Procedure (TCLP) test;     b) listing of about 130 new hazardous wastes and waste chemicals on Reg. 347 Schedules;     c) applying the new "derived from" rule. Visit http://www.willmsshier.com Latest News for commentary and links to the regulations.

ENGAGEMENTS OF NOTE   Our Newest Partner! Willms & Shier takes great pleasure in announcing that Marc McAree will be a partner of the firm effective January 1, 2001. Marc is active in a wide range of environmental law matters.  Marc is a skilled and avid environmental lawyer and litigator, with strong negotiation and mediation skills. Marc has a Masters in Environmental Studies degree from York University. Congratulations Marc! Willms & Shier Welcomes New Lawyer We are pleased to welcome Anthony E. (Tony) Fleming to the Willms & Shier team. Tony is an experienced environmental lawyer. He was called to the Bar in 1995, and achieved a Masters of Law in Environmental Law from Queen's University. Tony has worked in both private and public sectors doing environmental litigation, compliance and prosecution work. In addition to civil litigation, Tony has argued cases before the Environmental Appeal Board and the Ontario Municipal Board. He has written several legal papers and articles on environmental law matters including contaminated land and voluntary compliance. Tony's experience in practice and his dedication to environmental law will strengthen Willms & Shier's full-service environmental law practice. Donna Shier will participate in a Cross-Canada legal panel on municipal assessment in June 2001. Details will follow in the next issue. Doug Petrie will be presenting a paper on Regulation of Intensive Farming at the Canadian Bar Association - Ontario's Annual Institute on February 2, 2001. Marc McAree will co-chair the day long Municipal/Environmental Law session entitled "Land Use Conflicts in Urbanizing Rural Areas". Marc McAree will speak on Contaminated Land: Associated Liability and Valuation! at the Institute of Municipal Assessors on December 15, 2000.