2013 Federal Environmental Compliance Year in Review
|A roundup of important new legislation, regulations, government announcements and court cases that we covered in the Environmental Compliance Insider in 2013.
LAW OF THE YEAR
As a step toward implementing the UN’s Globally Harmonized System (GHS), in June 2013, the Canada Gazette published a notice that Health Canada was seeking comments on proposed regulations that would replace the Controlled Products Regulations under the Hazardous Products Act and make other necessary changes to related laws. Health Canada has yet to release the final regulations, however.
OTHER NOTABLE REGULATORY CHANGES
Transportation of Dangerous Goods
In Oct., the Minister of Transport issued a protective direction, imposing new requirements on any person who imports or offers for transport crude oil, including mandating testing of any crude oil classified as UN 1267 or UN 1993 that hasn’t undergone classification testing since July 7, 2013.
In Oct., the Minister of the Environment finalized amendments to the Regulations Designating Physical Activities, which identify the physical activities that constitute a “designated project” that may require an environmental assessment under the Canadian Environmental Assessment Act, 2012.
Carbon Capture Storage
In Nov. 2012, the CSA and International Performance Assessment Centre for the Geologic Storage of Carbon Dioxide released the bi-national standard CSA Z741, Geological Storage of Carbon Dioxide, Canada’s first carbon capture and storage standard for the geological storage of carbon emissions deep underground.
CASE OF THE YEAR
Supreme Court of Canada Upholds Broad Environmental Reporting Requirement
During a highway blasting operation, flyrock damaged a house and car. The blasting company didn’t report the incident to the Ontario Ministry of Environment. The MOE charged it with violating Sec. 15 of Ontario’s Environmental Protection Act (EPA) by failing to report the discharge of a contaminant that caused or was likely to cause an adverse effect. The Supreme Court of Canada ruled that the company should’ve reported the incident to the MOE. The purpose of the reporting requirement was to ensure that the MOE—not the notifying company or individual—investigates the reported event and determines what remedial steps, if any, are required. Under the EPA, a discharge must be reported if: 1) it was out of the normal course of events; and 2) it had or was likely to have an adverse effect on the environment. Here, the company had discharged flyrock into the natural environment during the blasting. This discharge wasn’t in the normal course of events and caused substantial property damage. So the company was required to report it under the EPA [Castonguay Blasting Ltd. v. Ontario (Minister of the Environment),  SCC 52, Oct. 17, 2013].
OTHER NOTABLE CASES
Supreme Court: Environmental Orders Can Be Subject to Bankruptcy Law
A company closed its operations in NL due to financial problems and began the bankruptcy process under the Companies’ Creditors Arrangement Act (CCAA). The NL government issued five remediation orders to the company but it didn’t comply with them. NL asked the court to rule that its orders weren’t claims subject to the CCAA. The Supreme Court of Canada ruled that environmental orders requiring the remediation of contaminated property can be considered monetary claims and thus subject to the CCAA and insolvency proceedings if three conditions are satisfied:
1) There must be a debt, liability or obligation to a creditor;
2) that debt, liability or obligation must have arisen before the time limit for inclusion in the CCAA claims process; and
3) it must be possible to attach a monetary value to the debt, liability or obligation. Here, the orders only satisfied the first two conditions. It was sufficiently certain that the province would perform the remediation work and thus fall within the definition of a creditor with a monetary claim, concluded the Court [Newfoundland and Labrador v. Abitibi-Bowater Inc.,  SCC 67 (CanLII), Dec. 7, 2012].
Nuisance Claim Rules Clarified by Supreme Court of Canada
The owner of a truck stop sued the Ministry of Transportation for damages for the loss of the property’s market value and loss of business caused by its opening of a new section of highway. One of the issues was whether he could’ve, under the law of private nuisance, obtained damages if the highway construction wasn’t done under statutory authority. The Supreme Court of Canada ruled that the owner could’ve had a successful nuisance claim. It explained that the elements of a nuisance claim must satisfy a two-pronged test in which such claims must be based on an impairment that’s both 1) a substantial and 2) an unreasonable interference with the occupation or enjoyment of land by its owner [Antrim Truck Centre Ltd. v. Ontario (Transportation),  SCC 13 (CanLII), March 7, 2013].
$385,000 Fine Largest for WAPPRIITA Violation
A New Brunswick resident was convicted of seven violations of the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (WAPPRIITA) for illegally exporting about 250 Narwhal ivory tusks to the US over seven years. The court fined him $385,000, the largest penalty imposed to date for WAPPRIITA offences. The court also barred him from possessing or purchasing marine mammal products for 10 years and required him to forfeit items used to smuggle the tusks, including a truck and trailer seized during the investigation [Gregory Logan, Govt. News Release, Oct. 2, 2013].
Man Convicted of Fisheries Violations Fined $22,500 for Ignoring Court Order
A man installed a culvert and placed fill material in the watercourse and adjacent wetland, disrupting a habitat that was excellent spawning, nursery and feeding grounds for fish species including pike, small mouth bass, sunfish, perch and brown bullhead. He was convicted of violating Sec. 35(1) of the Fisheries Act. The court issued an order requiring him to comply with certain conditions. When he failed to do so, the Crown filed additional charges against him. The court fined him a total of $22,500 for failure to comply with a court order [William Sutherland, Govt. News Release, May 22, 2013].
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