November 16, 2011 Dianne Saxe 3
Dustn R. v. Warren Bitulithic (2001)n Dust from portable gravel crushern Covered vehicles nearbyn Paid cleanup n Fine: $15,000 plus VFS
November 16, 2011 Dianne Saxe 4
Dust, #2n R. v. Hard Rock Paving (2007)n Reconstruction of raised trackn Strong winds, history of dust complaintsn Angry neighboursn Owner authorized watering after MOE calln Prosecution 2 years latern Fine: $5700
November 16, 2011 Dianne Saxe 5
SiltR. v. Spruce Falls Inc. (2003)n Faulty road-building: silt into creekn Impact severe: altered course, changed habitatn Fines (+VFS):
n $25,000 (discharge that may impair)n $5000 (failure to report to MOE; had reported to
MNR)n $10,000 (failure to follow work plan)
n PLUS spent > $100,000 to remediate and upgrade erosion-prevention measures
November 16, 2011 Dianne Saxe 6
Silt, #2n R. v. Barrien Fisheries Actn CA fill permitn Is municipality liable for developers’s
erosion?n City accepting dedication of roads, EPZ
November 16, 2011 Dianne Saxe
Torbear Constructionn Sewage plant upgrade affecting
containmentn Subcontractor broke chemical pipen No extra precautionsn $80,000 + VFS
7
November 16, 2011 Dianne Saxe
Nethercott Excavatingn Transported contam soil as “fill”n Convicted of using waste management
system w/o coan $8,000 + VFS
8
November 16, 2011 Dianne Saxe
Mattamy (Half Moon Bay)n Burned wood waste in open firen Establishing waste site w/o permitn also no waste auditn $24,000 + VFS
9
November 16, 2011 Dianne Saxe
Biloski Contractorsn Hauled demolition waste to private pptyn Depositing waste at unapproved siten $15,000 + VFS + cleanup
11
November 16, 2011 Dianne Saxe 12
Fraud artistn Surplus soil dumped on illegal sitesn Mixed with illegal dumping by third partiesn Fraudulent plan by disgruntled contractorn Charged with fraud....
November 16, 2011 Dianne Saxe
Heyes v South Coast BCn Class action for noise/ disruption during
Canada Line constructionn Successful at trial, overturned on appeal,
SCC refused leave
13
November 16, 2011 Dianne Saxe 16
Federal Rolen Issues of national/international concern
n Crossing borders (e.g., import/export of hazardous waste, transport of dangerous goods, climate change)
n Toxic substancesn Science/standard setting
n “Federal house”n Federal government/agenciesn Areas of exclusive federal jurisdiction (harbours,
railways, aviation, nuclear power, oceans, fisheries)
November 16, 2011 Dianne Saxe
Key statutes
17
n Environment Canada:n Canadian Environmental Protection Act, 1999n Canadian Environmental Assessment Act
n Department of Fisheries and Oceans:n Fisheries Act
November 16, 2011 Dianne Saxe 18
Provincial Rolen Most environmental issues
n Air, land, and watern Property and civil rightsn Natural resources
n Key provincial statutesn Environmental Protection Act
n Regulation 347 (Waste)n Ontario Water Resources Actn Clean Water Act, 2006n Toxic Substances Reduction Act
November 16, 2011 Dianne Saxe 19
Municipal Rolen Steadily growing
n Off-loading by provincesn More responsibilities than money
n Key statutesn Municipal Act, 2001
n Sewer bylawsn Site alteration bylaws
§ Planning Act
November 16, 2011 Dianne Saxe
Other Agenciesn Conservation authorities
n fill controln flooding
n Source water protection committeesn Protecting sources of drinking water
20
November 16, 2011 Dianne Saxe
Key obligationsn Don’t polluten Get all the right permitsn Report, report, report
n There are lots more...
22
November 16, 2011 Dianne Saxe 24
Dischargesn e.g. EPA S. 14 - No person shall
n discharge…or cause or permit the discharge of
n a contaminantn into the natural environment, thatn causes or may causen an adverse effect.
November 16, 2011 Dianne Saxe 25
Who is the polluter?n Who “causes or permits”?n Who has “charge, management and
control”?n Corporationn Officers/Directorsn Senior managementn Staff?
November 16, 2011 Dianne Saxe
Don’t pollute n Ontario Water Resources Act
s.30 – “cause or permit” a discharge that pollutes water
n Fisheries Acts.35 - Carry on a “work or undertaking” that harms
fish habitat (HADD)s. 36- Deposit deleterious substance in waters
frequented by fish
26
November 16, 2011 Dianne Saxe
Controln Liability rests upon control and the power/
authority/opportunity to preventn R. v. Sault St. Marie
27
November 16, 2011 Dianne Saxe 28
What is Pollution?n “Contaminant”, s.1n Anything with potential for adverse effect
n Solid (e.g., dust, smoke, flyrock)n Liquid (e.g., wash water)n Gas n Vibration n Noisen Odour
November 16, 2011 Dianne Saxe 29
Adverse Effectn Impairment, injury, damage, harmn Impair quality of environment for any usen Interference with normal use of propertyn Material discomfort
November 16, 2011 Dianne Saxe 30
How much is too much?n Objective benchmarks
n Regulationsn Guidelinesn Permits
n Subjectiven Adverse effect
n Trivial impacts?
November 16, 2011 Dianne Saxe 31
SpillsWhat is a spill?n Abnormal discharge out of a structure,
vehicle or other containern of a pollutant n into the natural environmentn that causes or is likely to cause an adverse
effect
November 16, 2011 Dianne Saxe 32
Is that a spill?n No minimum quantityn Need not leave propertyn Odours or gas (not noise) can = spilln Leaksn Flyrock
November 16, 2011 Dianne Saxe 33
Obligationsn Stop spilln Report
n To MOE, Municipality, owner of pollutant, AND person in control of pollutant,
n Plus OHSA if impact on a workern Contain and clean up
n Restore natural environment to the extent practicablen Civil liability
November 16, 2011 Dianne Saxe
“You spill, you pay”n Environmental penalties for spillsn Absolute liabilityn Administrative processn Penalties increase with time
n To start: only MISA sector facilities affectedn Factors: seriousness of violation; consequences;
monetary benefit gained; duration of offence; previous violations and
34
November 16, 2011 Dianne Saxe
Don’t pollute: Waste n Elaborate rules for all kinds of wastesn All sites need C of An Cradle-to-grave control for hazardous
wastesn Special substances, e.g. Asbestos
35
November 16, 2011 Dianne Saxe 36
Moving soiln New Part XII (Soil)n MOE has talked about movement of “clean” soils for
yearsn Some argued that only “inert fill” (Table 1) could be
movedn This restrictive interpretation was rarely followed….but is
now lawn How much more will it cost to dispose of surplus soils
from construction projects?
November 16, 2011 Dianne Saxe 37
Better samplingn Must sample all soil brought to RSC property n Analyse everything “may reasonably be
expected to be potentially present”n Segregate stockpiles by suspected level of
contaminant, and sample eachn RSC’s require reports documenting and
quantifying all movements of soil on and off an RSC property
November 16, 2011 Dianne Saxe 38
Where can it go?n Can freely transport & deposit only soils
that meet Table 1n Soils that meet Tables 2 or 3 may only be
transported to already-contaminated propertiesn that were used as gas stations, garages, dry
cleaners, industries, andn require an RSC before conversion to a more
sensitive use (s. 32)
November 16, 2011 Dianne Saxe 39
Get all the right permitsn Air and water pollution permits
n Certificates of approval (permits)n Standards get steadily tougher
n Waste management systems and disposal sites
n Ontario’s approval system is changing dramatically
November 16, 2011 Dianne Saxe
Other permitsn Federal and provincial environmental
assessmentn Renewable energy approvalsn Sewer bylaw discharge agreements
n changing this year in Toronto
40
November 16, 2011 Dianne Saxe
Report, report, reportn Spillsn NPRIn GHGsn Waste diversionn Permit conditions
41
November 16, 2011 Dianne Saxe
Other obligationsn Contaminated sites
n rules changed July 1, 2011n Endangered speciesn Dangerous pestsn Chemicals Management Plann Protected areasn etc.
42
November 16, 2011 Dianne Saxe 43
Overviewn Some casesn Who Does What?n Key Obligationsn Enforcementn Due Diligence
November 16, 2011 Dianne Saxe 44
Enforcementn The Players
n MOE/ DFOn Minister, Director, Provincial Officer
n Ordersn Minister’s, Director’s, POO, Court/ERT Orders
n Offencesn Breach Act or regulationsn Fail to comply with Order, CofA, other permits
November 16, 2011 Dianne Saxe
Limitation period n Two years after the later of the day the offence was
committed and the day on which evidence re the offence first came to the attention of a Director
45
November 16, 2011 Dianne Saxe 46
Offences:n Less serious n More serious
n Breach numerical limit in order, CofAn Discharge adverse effect (actual or likely)n Fail to reportn Obstruct PO, false info
November 16, 2011 Dianne Saxe 47
Penalties - less serious offences n Individuals:
n First conviction: ≤ $50,000 per day (first offence)n Subsequent convictions: ≤ $100,000 per day and/or
imprisonment for ≤ 1 yearn Corporations:
n First conviction: ≤ $250,000 per dayn Subsequent convictions: ≤ $500,000 per day
November 16, 2011 Dianne Saxe 48
Penalties - more serious n Individuals:
n First conviction: $5,000 to $4 million per dayn Second conviction: $10,000 to $6 million per
day n Subsequent convictions: $20,000 to $6
million per day and/orn imprisonment for ≤ 5 years
November 16, 2011 Dianne Saxe 49
Penalties - more serious n Corporations:
n First conviction: $25,000 to $6 million per day
n Second conviction: $50,000 to $10 million per day
n Subsequent convictions: $100,000 to $10 million per day
November 16, 2011 Dianne Saxe 50
Sentencingn Aggravating factors (adverse effect, intentional/
reckless, motivated by profit, prior convictions)n Mitigating factors (act done in good faith, quick
response…)n Plus victim fine surcharge: 25%n Criminal conviction?
November 16, 2011 Dianne Saxe 51
Officers/directors- s.194n Duty to take all reasonable care to prevent corporation
from contravening Act byn Discharging or causing/permitting discharge n Failing to notify MOE of dischargen Contravening an Order under the EPA
n Failure to discharge that duty - person is guilty of an offence
n A director or officer of a corporation may be convicted whether or not the corporation is prosecuted
November 16, 2011 Dianne Saxe 53
Questions? Comments?
Saxe Law Office248 Russell Hill Road
Toronto, Ontario M4V 2T2
Tel: 416-962-5882
Fax: 416-962-8817
Email: [email protected]
envirolaw.com