|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
New industrial air emission standards under Regulation 419/05 took effect Feb. 8, 2013. In addition, on Jan. 21, 2013, the MOE posted a discussion paper outlining new proposals to reduce GHG emissions in the industrial sector by 5% over five years. The new standards now in effect impact the following industries:
OTHER NOTABLE REGULATORY CHANGES
In Oct., the MOE adopted a more up-to-date guideline for assessing noise impacts. Environmental Noise Guideline Stationary and Transportation Sources – Approval and Planning, Publication NPC-300 replaces NPC-205, NPC-232 and LU-131. The idea is that NPC-300 will provide a more accurate assessment of noise conflicts between existing industries and proposed new developments.
As of July 1, Ontario is streamlining its approach to species at risk protection by implementing standardized rules and an online registry for certain low-risk activities. Sixty-five more species will benefit from habitat protection.
CASE OF THE YEAR
ON Court: Even ‘Innocent’ Landowners Can Be Forced to Pay for Remediation
Several hundred litres of furnace oil leaked from the basement of a privately owned building onto property that a city owned and from which it could adversely affect a lake. The MOE ordered the private property owners to remediate the contamination. They started remediation but their funds ran out before it was complete. So the MOE ordered the city to clean up the contamination on its property and prevent its discharge from the land. The city challenged the order, arguing that it undermined the “polluter pays” principle. The Ontario Court of Appeal ruled that the city had to comply with the order. The court noted that the order in this case was issued under Sec. 157.1 of the Environmental Protection Act (EPA), which permits the issuance of “no fault” remediation orders. And because the city owned property on which a contaminant—the spilled fuel oil—was present and could negatively impact a nearby lake, this section applied to it despite the fact that it wasn’t responsible for the oil spill [Kawartha Lakes (City) v. Ontario (Environment),  ONCA 310 (CanLII), May 10, 2013].
OTHER NOTABLE CASES
Building Owners Accused of Environmental Offences for Birds Hitting Windows
An environmental advocacy group accused the owners and managers of a group of office buildings of violating the federal Species at Risk Act as well as the provincial Environmental Protection Act based on a large number of incidents in which migratory birds—some of a threatened species—struck the buildings’ highly reflective windows and facades and were injured or killed. The Ontario Court of Justice ruled that the environmental laws applied but found that the defendants had exercised due diligence. Although the environmental harm presented in this fact pattern wasn’t likely contemplated when the EPA was drafted, the law was broad enough to apply to emissions and reflections of light from windows. The court noted that the owners and managers were in touch with and did consult experts in this area; invested in a bird deterrent application at the complex; implemented and maintained a policy to respond to nocturnal light pollution; cooperated with a local environmental group’s bird retrieval, rescue and documentation efforts for more than a decade; and tried to find solutions to the problem of daytime collisions since the late 1990s. So the court found that the owners and managers had exercised due diligence to prevent the bird strikes [Podolsky v. Cadillac Fairview Corp.,  ONCJ 65 (CanLII), Feb. 11, 2013].
Companies & Officers Convicted of Environmental Charges for Propane Explosions
After a worker filled a small propane truck with propane from a bigger truck and while a co-worker was filling cars with propane, there were a series of explosions that killed the co-worker. Two companies were charged with violating the Environmental Protection Act, including discharging contaminants into the environment and not complying with orders issued afterwards, as well as OHS offences. Two corporate officers were also charged as to the orders. The court concluded that the risk of an explosion during propane transfers was foreseeable but the defendants didn’t exercise due diligence to prevent. In addition, the defendants knew how to challenge the environmental orders but chose not to do so. Thus, the court convicted them on the environmental offences as well as the safety offences [Ontario (Ministry of Labour and Ministry of the Environment) v. Sunrise Propane Energy Group Inc., 2013 ONCJ 358 (CanLII), June 27, 2013].
Ontario Quarry/Asphalt Plant Loses Appeal on Nuisance Claim
A large paving and construction company owned a quarry. After it installed a temporary asphalt plant at the site, residents who lived in the vicinity of the quarry sued, complaining primarily of noise and odour allegedly caused by the production of asphalt. The lower court found in favour of the residents and ordered the company to pay them a total of $14,700 as damages for nuisance, trespass and negligence. The company appealed. The Ontario Superior Court of Justice dismissed the appeal as to the nuisance claim but upheld the challenges to the trespass and negligence claims. In dismissing the trespass claim, the appeals court ruled that the noise and odours didn’t directly or physically intrude on the residents’ land. The court also dismissed the negligence claim on the grounds that there was no evidence that any of the residents suffered personal injuries or property damage to an extent that justified compensation [Moore v. Smith Construction,  ONSC 5260 (CanLII), Aug. 15, 2013].
Impact of Road on Threatened Turtles Costs Wind Farm Its Approval
A wind farm had an endangered species permit that allowed it to harm threatened species including the Blanding’s turtle and its habitat. But an environmental group challenged the farm’s renewable energy approval on the grounds that the road that would lead to the farm would cause serious and irreversible harm to the Blanding’s turtle. The Environmental Review Tribunal revoked the renewable energy approval, ruling that this danger to a threatened species couldn’t be effectively mitigated by the conditions in the approval. It explained that the endangered species permit was issued after a
determination that the species as a whole in Ontario would benefit overall. But the Tribunal was concerned with the status of the Blanding’s turtle population that lives on this particular site and the surrounding landscape [Prince Edward (County) v. Ontario (Ministry of the Environment),  O.E.R.T.D. No. 40, July 3, 2013].
Companies & Directors Fined Almost $300,000 for Illegal Waste Violations
After receiving complaints of waste dumping at a property, the MOE issued orders to clean up waste including, bricks and construction and demolition materials. But the company that owned the property didn’t comply. The property owner and its directors were convicted of failing to comply with the MOE orders and submit related documentation. The company they leased the property to and its directors were convicted of depositing waste on a site unapproved by the ministry to accept waste. The court fined the property owner $75,000, one director $30,000 and the other $14,999. It also fined the tenant company $95,000 and its director $25,000 [1509439 Ontario Inc., Paul and Jeffrey Wynn, Global Haulage Inc. and Philip Pinheiro, Govt. News Release, Dec. 14, 2011].
Destruction of Fish Habitat Costs Ontario Ministry $250,000
Fisheries and Oceans Canada investigated repeated sediment spills and subsequent destruction of fish habitat in Stirling Creek, which is home to Brook Trout, as well as many other fish and aquatic species, as a result of construction activities along a highway. The investigation resulted in charges against a company and the Ontario Ministry of Transportation. They each pleaded guilty to two violations of the Fisheries Act. The court ordered the Ministry to pay a $25,000 fine and $225,000 to the Environmental Damages Fund [Carillion Canada Inc. and the Ontario Ministry of Transportation, Govt. News Release, Sept. 27, 2013].
Composting Operation Fined $200,000 for Discharging Odours
A composting operation received organic food waste generated from municipal green bins. It violated the terms of its MOE approval and a ministry order by exceeding the allowable limits of food waste, leaf, yard and wet waste received at the site. The operation was also found responsible for discharging odours that caused adverse effects, including impairing the quality of the natural environment, causing material discomfort to a person and the loss of enjoyment of normal property use. The court fined it $200,000 [Universal Resource Recovery Inc., Govt. News Release, March 8, 2013].
Company Fined $150,000 for Releasing Sulphuric Acid Mist
A manufacturing facility produced sulfonates and silicates used in lubes, industrial oil formulations and greases. Due to a pump failure, sulphuric acid mist was released, causing adverse impacts to the surrounding environment and community. Those exposed to the mist reported health impacts, businesses were shut down, people in the area were evacuated and a number of schools in the area were impacted. As a result, the company was fined $150,000 [Chemtura Canada Inc., Govt. News Release, Dec. 27, 2012].
Company Fined $120,000 for Discharging Oil Sludge
A company had MOE approval to transport waste cooking oil and process this oil for sale. The MOE responded to reports of oil being dumped in a ditch that flowed to a creek. A company truck was found to have been in the area. Thousands of litres of a greasy oily substance were found in the ditch, which was cleaned up by the city. About two months later, a city worker saw a tanker truck registered to the company stopped at the same location and found thousands of litres of waste oil sludge in the ditch. The city again cleaned up the site. The company was fined $120,000 for discharging waste oil sludge into a municipal ditch, impairing the ditch and the downstream receiving waters. The court also ordered the company to pay the city more than $25,000 as restitution for the cost of cleaning up the spills [Green Diesel Canada Ltd., Govt. News Release, Jan. 13, 2013].
Company Fined $100,000 for Improper Disposal of Toilets
A company was contracted to remove toilets from a retrofit project and transport them for disposal. An investigation found that the company took the toilets to its transfer facility and then to a former quarry, which wasn’t an approved waste disposal site. It deposited two loads of approximately 500 toilets wrapped in garbage bags. The company also failed to properly decontaminate tankers used to transport various liquid wastes. It pleaded guilty to depositing waste on an unapproved site and failing to decontaminate a tanker contrary to a ministry approval. The court fined it $100,000 [349977 Ontario Ltd., operating as Lacombe Waste Services, Govt. News Release, July 23, 2013].
Company & Owner Fined $100,000 for Sewage Discharge
Without the necessary MOE approval, a company that operated a winery, retail store and banquet hall installed and operated a subsurface sewage works that included a pipe that crossed a nearby creek. A leak in the pipe resulted in a discharge of raw sewage into a creek tributary, resulting in impaired water quality. The company and its owner were convicted of operating a sewage works without an approval. The company was fined $100,000. The owner was given a suspended sentence and two years’ probation [Gottfried Hernder and Hernder Farms Ltd., Govt. News Release, May 24, 2013].
Company Penalized $100,000 for Violating Halocarbon Regulations
A company was required to conduct an annual leak test on refrigeration systems that come into contact with halocarbons, but it didn’t. The company pleaded guilty to violating the Federal Halocarbon Regulations, 2003. The court fined it $40,000 and ordered it to pay $20,000 to the Environmental Damages Fund, $20,000 to the Saugeen Valley Conservation Foundation, $15,000 to sauGREEN for the Environment and $5,000 to the Penetangore Watershed Group [Bruce Power LP, Govt. News Release, Nov. 5, 2012].
Waste Company Fined $85,000 for Several Approval Violations.
A company that operates waste disposal sites violated its approvals for two of those sites. At one site, two bins containing solid non-hazardous waste (gravel and asphalt) were stored outside the building (they should’ve been inside). The company was fined $25,000 for this offence. At the other site, two tankers containing hazardous liquid waste (aviation fuel) were parked in an unsecured parking lot with no staff present at the time (they’ve should’ve been in a secure area). It was fined $60,000 for this offence [Scott Environmental Group Ltd., Govt. News Release, Oct. 8, 2013].
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