Two Vancouver families have had an expensive nightmare due to an leaking underground storage tank.

In 2001, Ms. Aldred purchased a West Vancouver property from the Colbecks, who had purchased it themselves two years before. When she mentioned a building inspection, the Colbecks gave her the inspection report they had commissioned, and assured her that the old underground storage tank on the property had been properly dealt with. (The Colbecks gave these assurances on the basis of a report from their contractor, who had been on site for less than a day and charged only $900, yet claimed that he had pumped out the tank, cleaned it and filled it with sand, removed filler/vent pipes and replaced the sidewalk.)

Ms. Aldred relied on these assurances, which were untrue.  When she listed the property for sale in 2008, she discovered that the UST was still on the property.  This began a chain of lawsuits. Ms. Aldred paid over $200,000 for remediation and is now suing her remediation contractor.  The sale of the property at $1.57 million fell through, and she ultimately sold it for $1 million. [see related case Gulston v Aldred 2010 BCSC 241 relating to Aldred's action for breach of contract]

Ms. Aldred successfully sued the Colbecks for negligent misrepresentation and as persons responsible for remediation of the property under BC’s Environmental Management Act.  The judge ruled that the  Colbecks had negligently misrepresented the status, safety and integrity of the oil tank, and Ms. Aldred reasonably relied on these representations.

The property was a contaminated site under BC’s Environmental Management Act, and the Colbecks (as owners) had a statutory responsibility for its remediation.  Further, as the Colbecks had not examined the tank, leakage must have occurred while they owned the property, thus contributing to the contamination.

Ms. Aldred was entitled to recover damages caused by the Colbecks’ negligent misrepresentation: she had sold one property at a loss of $6123 in order to purchase the West Vancouver property in 2001.  She is entitled to damages equal to the reasonable cost of remediation services rendered under the supervision of an environmental biologist, to be determined following disposition of the action between Ms. Aldred and her remediation contractor.

Her claim for damages sustained due to the delay in selling the property was dismissed as too remote from the negligent misrepresentation to be compensable. Further, no award for general damages (for discomfort, frustration etc) waswarranted.

Comment: Property owners need to know what their contractors do — not just what they say they do. The Colbecks should have asked their contractor more questions and not relied on his representations about his work: the description of the work, the short time it took to complete and the price charged should have raised a suspicion that the work was not properly done.

Aldred v Colbeck, 2010 BCSC 57 (Jan 20 2010)

©2010 Environmental Law and Litigation. All Rights Reserved.

It is wonderful to hear how quickly the surface soil is disappearing from the Gulf of Mexico. Dec Doran of Oil Spill Control has graciously allowed me to post his photos from the BP spill cleanup in the Gulf. His key take-home message: watch out for those alligators!

PART 1 BP OIL SPILL RESPONSE OPERATIONS.

PART 1 BP OIL SPILL RESPONSE OPERATIONS

©2010 Environmental Law and Litigation. All Rights Reserved.

For more thoughts on the unjust aspects of Smith v. Inco, see our column in Slaw.

©2010 Environmental Law and Litigation. All Rights Reserved.

Three and four decades ago, Canada was an environmental leader. Now, in many ways, we just follow the US. On climate change, in particular, the Harper government has promised to do little until the US adopts its own climate bill. It is therefore particularly disappointing that last week congressional Democrats scuttled their climate bill for now.

However, the Obama administration keeps doing what it can to promote a green agenda, despite stiff opposition from the conservative Supreme Court and from Republicans. President Obama ordered the federal government to promote greener employee commuting habits, reduce business travel and otherwise scale back indirect greenhouse gas emissions 13 percent within a decade. The Energy Department announced it was funneling more than $100 million to projects to turn carbon dioxide into fuel, plastics and cement. The U.S. Postal Service said it is more than two thirds of the way to reducing energy use by 30 percent by 2015. And a bill introduced in the House would require the cosmetics industry to list all ingredients on product labels and their websites.

©2010 Environmental Law and Litigation. All Rights Reserved.

Cottagers frequently want to “clean up” their shoreline, but this is usually illegal without a permit.
A father and son were each charged with altering their shoreline and removing vegetation without a permit, contrary to the Saskatchewan Environment Management and Protection Act, 2002.  Young Mr. Kozub owned land on Round Lake, in the Qu’Appelle Valley.  One winter, his father decided to “clean up”  the shoreline; he hauled several truckloads of concrete and metal from the lake, along with vegetation.  He removed silt from the lake bottom and deposited it above the waterline.  In the spring, Mr. Kozub Junior, re-contoured the beach to make it look more “natural”.  Neither one had permits, though both knew that permits were required.
Following a complaint, the MOE issued a stop order, preventing further work from being done. The MOE also issued a remedial order, and the defendants spent significant time and money to restore the beach.
Then they were prosecuted. The defendants argued that the lake’s water level fluctuates, and the land where the alterations occurred was “flood plain”, not “lake” or “marsh”, so exempt from requiring a permit. The judge had no difficulty convicting them. The land was clearly marsh or shoreline; Round Lake is a “lake” despite fluctuating water levels.  Both defendants knowingly altered the shoreline. Mr. Kozub Senior was also found guilty of removing vegetation.
The Court found this a “massive case of shoreline destruction”.  Fines: Mr. Kozub Senior: $30,000; Mr. Kozub Junior: $10,000. The conviction against Mr. Kozub Senior for removing vegetation was stayed. Similar or greater fines are possible in Ontario.

R. v. Kuzub (Kozub) 2010 SKPC 78 (June 14, 2010)

©2010 Environmental Law and Litigation. All Rights Reserved.

Watch a short video interview with Dianne on the BP oil spill. Thank you to Jonathan Brun at Nimonik for  making and posting these videos.

©2010 Environmental Law and Litigation. All Rights Reserved.

FYI: yesterday’s story on  the Inco decision, and its implications for the tar sands.

©2010 Environmental Law and Litigation. All Rights Reserved.

Ontario takes a second stab at funding household hazardous waste collection. For decades, Canadian regulators have been trying to find ways to keep household hazardous waste out of landfills and toilets. The problem is that these wastes are expensive to collect and even more expensive to properly dispose of. Neither the province nor municipalities want to pay the mounting costs out of general taxpayer revenue. Instead, there is a strong consensus that hazardous goods should be dealt with through extended producer responsibility (EPR) programs. Such programs are already in place in many countries for many types of products. Ontario has an EPR for tires, for electronic waste, for paint, etc.

In principle, an EPR should send the right signals to the right people. The people who make and buy hazardous products should pay for their ultimate disposal, rather than dumping that cost on to the general public. If paying the full cost of legal disposal makes these products less attractive to consumers, so much the better, and less-hazardous products should gain market share.

This is the theory behind Waste Diversion Ontario, a special-purpose organization set up to design and run EPR programs for a wide variety of hazardous wastes. WDO  collects fees from end-users and uses the money to subsidize hazardous waste collection and recycling. Generally, the programs have run smoothly, if not perfectly– less electronic waste, for example, is being collected than had been hoped.

On July 1, 2010, WDO began collecting an Eco fee on thousands of hazardous consumer products under the Municipal Hazardous or Special Waste Program.  This went anything but smoothly.  No one seemed to understand what the fee was for or how it worked. Consumers balked at yet another charge that looked like a tax.  Retailers revolted.  It was particularly bad planning to have introduced the fee on same day the HST kicked in.

Ontario environment Minister, John Garretson, wrote a scathing letter to Gemma Zecchini,  head of Stewardship Ontario, on July 13. Her response is summarized at http://www.stewardshipontario.ca/sites/default/files/Stewardship-Ontario-News-Release-July-16-2010.pdf. WDO  raced to make the eco-fees more accurate, consistent, and understandable, but it was too late.

On July 19, Canadian Tire announced that it would not charge eco fees to its customers until a better system was in place.

There had been far too many mistakes made in charging the fees (e.g., fee discrepancies, over-charging customers),  and customers were blaming the retailer.

The eco fee structure imposed by Waste Diversion Ontario, a government agency, was complex, with interpretation left largely up to retailers – and leading to inconsistencies.  Also on July 19, Stewardship Ontario, seemingly surprised that consumers wanted to know more about how eco fees work, announced that it would work towards making eco fees accurate,  consistent and understandable.

On July 20,  Garretsen announced that  he had suspended the fees on  most hazardous consumer products for 90 days.

The Ministry of the Environment will use the time to work with Stewardship Ontario  retailers and consumers to redesign the system.  In the interim, taxpayers will pay for the expanded waste diversion program –$4-$5 million for the 90 day consultation period alone. I hope the money isn’t coming from the ministry’s operations budget.

©2010 Environmental Law and Litigation. All Rights Reserved.

The federal government has quietly admitted that its greenhouse gas emissions (GHG) reduction efforts are having little effect.

The Harper Conservatives won’t comply with the action plan portion of the Kyoto Protocol Implementation Act, 2007

, but they do  file the reports to Parliament that the KPIA requires. As a result, they have been forced to admit that GHG reductions in 2010-2012  will be less than 10% of their earlier projections.[i]^,[ii]

The new  projections were published in a report titled, A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act, on June 2, 2010 by the Environment Ministry.  In 2007, the year the KPIA was passed, the federal government optimistically  promised that “greenhouse gas emissions would decline by 2012 at the latest”.[iii]^,[iv] Cynics have now been vindicated: it’s not  going to happen. Instead, the government now expects tiny reductions of just 5 megatonnes (Mt) in 2010, 8 Mt in 2011 and 10 Mt in 2012.[v] Just last year,  the Conservatives  sunnily  predicted that emissions would be reduced by 52 Mt in 2010, followed by 63 Mt and 74 Mt in 2011 and 2012, respectively.[vi] Other than the recession, we have no particular reason to believe that even the new projections will be accurate.

Footnotes

[ii] Susan Lunn. (June 3, 2010). Greenhouse gas emissions down, but microscopically. CBC News, At http://www.cbc.ca/politics/insidepolitics/2010/06/greenhouse-gas-emissions-down-but-microscopically.html

[iii] Sierra Club Canada. “Sierra Club Canada condemns government inaction on climate,” At http://www.sierraclub.ca/en/climate-change/media/release/sierra-club-canada-condemns-government-inaction-climate

[iv] Environment Canada. (May 2010). A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act, At http://www.climatechange.gc.ca/Content/4/0/4/4044AEA7-3ED0-4897-A73E-D11C62D954FD/KPIA_2010.pdf

[v] Environment Canada. (May 2010). A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act, page 68, At http://www.climatechange.gc.ca/Content/4/0/4/4044AEA7-3ED0-4897-A73E-D11C62D954FD/KPIA_2010.pdf

[vi] Environment Canada. (May 2009). A Climate Change Plan for the Purposes of the Kyoto Protocol Implementation Act, page 59, At http://climatechange.gc.ca/Content/4/0/4/4044AEA7-3ED0-4897-A73E-D11C62D954FD/2009%20Climate%20Change%20Plan%20for%20the%20Purposes%20of%20the%20Kyoto%20Protocol%20Implementation%20Act%20.pdf

©2010 Environmental Law and Litigation. All Rights Reserved.

One of the biggest scandals surrounding the BP oil spill in the Gulf of Mexico was the incompetence and worse of its regulator, the Minerals Management Service. Can pro-energy regulators also protect the environment? It seems unlikely.MMS was supposed to be the safety and environmental regulator for offshore oil drilling, while simultaneously promoting exploitation of the offshore oil resource.  Which of these objectives had higher priority? The name said it all. News reports suggest that MMS members were regularly wined, dined, and otherwise entertained by oil industry representatives. MMS members had close ties to the oil industry, and were more sympathetic to their point of view than to that of the public.  (“Regulatory capture”). Members of the U.S. Congress says they were guilty of “mismanagement and corruption”.

The Obama administration has cleaned house, and has now rebranded the MMS as the Bureau of Ocean Energy Management, Regulation and Enforcement.  To no one’s surprise, the new name signals a complete change in the agency’s method, management, and approach. The Bureau has posted a fascinating electronic reading room for those who want source documents on the Deepwater Horizon oil spill.

Meanwhile, Canada has just eliminated the CEAA independent environmental review of major energy projects, conferring sole approval responsibility on the National Energy Board, which is much more friendly to the oil industry. Does this really sound like a good idea?

©2010 Environmental Law and Litigation. All Rights Reserved.

Congratulations to Dianne on becoming President of Windshare, Canada’s first wind energy cooperative. Together with Toronto Hydro, Windshare owns and operates the highly visible turbine at the Toronto waterfront that has done so much to build support for wind energy in Ontario.

Wind energy is the fastest growing form of renewable electricity generation, and is much more economical than solar. Local, distributed power generation can also help keep the lights on when transmission grids go down, as Ontario is likely to experience with greater frequency. Unfortunately, recent provincial rules (including the 5 km offshore exclusion zone) have made it much less likely that we will see any more urban turbines in Ontario.

©2010 Environmental Law and Litigation. All Rights Reserved.

The successful class action by Port Colborne residents, Smith v. Inco, has opened the door to a similar class action against the tar sands.  In Inco, nickel particles were emitted from the refinery for 80 years.  There was no proof that Inco ever operated illegally or negligently, or failed to comply with its provincial permits for air emissions.  Nevertheless, Justice Henderson of the Ontario Superior Court has ordered Inco to pay its former neighbours $36,000,000 in damages for lost property value, in private nuisance and under the old strict liability case, Ryland’s v. Fletcher.  Operating a refinery was, he said, a “non-natural” use of land.

The same logic applies, with equal or greater force, to those downwind of Alberta’s tar sands.  Hydrogen sulfide, particulates, and other air pollutants emitted by the tar sands are reported to adversely affect their neighbours as far as away as Saskatchewan.  Whether or not  Suncor and Syncrude  are complying with provincial and/or federal permits for their emissions, these permits don’t protect them from civil liability in private nuisance and Ryland’s v. Fletcher.

Thus, those downwind of the Tar Sands now have a strong precedent for a class action against Suncor and Syncrude, at least for lost property  value and similar damages. (It may be too difficult to bring health claims in a class-action; this was not permitted in the Inco case.)  If Saskatchewan wheat farmers are suffering reduced yields, they may be able to bring such a claim in their home province, which may be more hospitable to the lawsuit.

©2010 Environmental Law and Litigation. All Rights Reserved.

A coalition of animal protection and conservation groups filed a lawsuit on June 30 to stop BP from conducting “controlled burns” of spilled oil in the Gulf of Mexico. They allege that protected and endangered sea turtles were being incinerated alive.^, As part of BP’s efforts to control the massive amount of oil spewing from the Deepwater Horizon, the company is burning off captured oil. Unfortunately, according to several environmental groups, BP is burning more than just oil. The Animal Welfare Institute, the Center for Biological Diversity, Turtle Island Restoration Network and Animal Legal Defense accused BP of burning endangered and threatened sea turtles, including the rare Kemp’s Ridley, as well as the endangered Leatherback sea turtles, endangered Green sea turtles, threatened Loggerhead sea turtles, and endangered Hawksbill sea turtles.^, Young turtles hide among the tarballs as if they were seaweed, and may be unable to escape before the oil is ignited.

On July 1, the wildlife activists amended the complaint to add, as defendant, the U.S. Coast Guard who is in charge of directing BP’s containment activities. BP America Inc., BP Exploration & Production, and BP PLC were accused of violating the federal Endangered Species Act (ESA), 16 U.S.C. Section 1538(a) as well as BP’s lease with the United States, which requires that BP complies with all environmental statutes and regulations. The Coast Guard was accused of violating its mandatory obligations under the National Contingency Plan requirements of the Clean Water Act (CWA), 33 U.S.C. Section 1321(d)(M).

The next day, BP, the Coast Guard and the wildlife activists agreed to the plaintiffs’ proposed order to allow wildlife workers to join oil-incineration vessels at sea to rescue sea turtles trapped inside the booms before burnings starts.

Jessica Yuan and Dianne Saxe

©2010 Environmental Law and Litigation. All Rights Reserved.

Why didn’t the limitation period protect Inco from the Port Colborne class action, Smith v. Inco (formerly Pearson v. Inco)? According to Justice Henderson, because of the discoverability principle. Everyone knew about the nickel refinery, and could easily have known that there was nickel in the soil in town. But most didn’t know it would affect the value of their properties. In fact, the nickel may not have affected property values.

But then there was a chain reaction, none of which was caused by Inco. The MOE did a study of the effect of nickel on plants. In Sept 2000, they published it. To protect themselves, real estate agents started to disclose nickel in local real estate transactions. And, according to Justice Henderson, that started the limitation period for loss in property value from running all over again.

If that’s all it takes, the same panicked chain reaction could happen in many other places. There is TCE in Barrie and Cambridge, PAHs and many other things in Toronto and nickel in Sudbury. Petroleum hydrocarbons have been spilled almost everywhere. Land near busy roads received lead and salt. Agricultural land may have pesticides. No one can count any longer on the limitation period having run for any of it.

Berkhout testified that until the 1998 MOE phytotoxicological study was publicly released on January 26, 2000, the real estate agents in the area did not refer to nickel soil contamination in any of the documentation used for the purchase and sale of properties in the area. When the MOE study was released in January 2000 Berkhout said that it was the first time that the industry could see on paper what they were dealing with.

[113]                    After a meeting of real estate board members on February 15, 2000, most of the real estate agents operating in Port Colborne started to insert clauses with respect to nickel soil contamination into the agreements of purchase and sale.  In his memo to the real estate agents dated February 15, 2000, Berkhout wrote that “Financing and/or closings may be affected”.

[114]                    Therefore, I conclude that the real estate agents as a whole did not perceive that nickel in the soil could affect the residential real estate market prior to the release of the 1998 MOE phytotoxicological study. For the purposes of the discoverability issue I accept that the real estate agents in the area became aware of the potential effect on property values when the study was publicly released on January 26, 2000.  Further, I accept that they would not have been aware of the potential effect on property values through reasonable diligence prior to that date.

[115]                    In my view, if real estate agents were not aware until January 2000 of the potential effect of nickel soil contamination on property values, it is extremely unlikely that most members of the public knew or ought to have known of the effect of nickel soil contamination on property values until at least that time. Most members of the public would not be aware of the effect on property values until information was disseminated through the real estate agents after February 15, 2000.

[116]                    Next, this court must consider how to apply the discoverability principle set out in Peixeiro to a class action. Does the limitation period start to run when all of the class members knew or ought to have known all of the material facts? Or, when only one of the class members knew or ought to have known? Or, when a majority of class members knew or ought to have known? There is no case law on point.

[117]                    In the present case, there were probably 10 or 12 property owners, out of approximately 7,000 property owners in the class, who had their own properties tested for nickel prior to the 1998 phytotoxicological study, and who therefore had some special knowledge of the general extent of nickel contamination of the soil in Port Colborne. However, I cannot assume that any of those property owners knew or ought to have known that their property values could be affected.

©2010 Environmental Law and Litigation. All Rights Reserved.

Inco has been ordered to pay $36 million to past and present property owners in Port Colborne,  for lost property value due to historic nickel contamination. None of the contamination occurred after 1984, and Inco complied with all applicable laws during the operation of its refinery. Nevertheless, Justice Henderson ruled that Inco is strictly liable to the Port Colborne property owners“as a result of the failure to prevent the escape of a dangerous substance (Rylands v. Fletcher).”  The neighbourhood claims are not statute barred, he said, because the neighbours did not know how much the nickel contamination would affect their property values until after public announcements in September 2000.  A  Ministry of the Environment–ordered cleanup of the area, in accordance with a community-based risk assessment, was also no bar to the lawsuit, since not all nickel in the soil would be removed by this cleanup.

Inco will undoubtedly appeal this hugely important decision. If it stands, it will open the door to similar lawsuits across the country against industries and municipalities for historic contamination.  We will provide more details next week.

©2010 Environmental Law and Litigation. All Rights Reserved.

More stringent cleanup standards for contaminated sites will come into effect July 1, 2011, under 2009 amendments to Regulation 153/04.  Some property owners with ongoing cleanups may prefer to use the old numbers, i.e. the “March 9, 2004 Soil, Ground Water and Sediment Standards” (“2004 standards”) to obtain a record of site condition after July 1, 2011. If they do, they must file a notice, which is now available.

Section 21.1 of the Regulation allows such owners to extend the use of the 2004 standards and certain associated provisions if the owner:

• meets the requirements of section 21.1;
• chooses to use the 2004 standards;
• submits a Record of Site Condition for filing after July 1, 2011 but before January 1, 2013.

For an owner to be eligible to use the 2004 standards, a Notice must be completed and submitted via email to the Ministry of Environment between July 1, 2010 and December 31, 2010 along with the necessary supporting documents.

The Notice under Section 21.1 has been posted on the ministry’s website along with additional instructions at the following link: http://www.ene.gov.on.ca/en/land/brownfields/amendments.php. However, many owners of contaminated sites are finding that it makes limited financial sense to extend the use of the 2004 numbers, given the requirement to prepare new Phase I and Phase II  environmental site assessments for any Record of Site Condition filed after July 1, 2011.

©2010 Environmental Law and Litigation. All Rights Reserved.

Humans are not perfect.  Engineering, while amazing, is not perfect.  Accidents ( including spills) will happen. What should environmental law, and lawyers, do about it?

We tend to do the easy things,  more often than the important ones. For example,   it is easy and popular to make accidents illegal. Almost every country has laws against spills, and they are comparatively easy to prosecute.

A few spills can and do cause catastrophic harm — we only need to look at BP’s oil spill in the Gulf of Mexico. But environmental lawyers often rue the amount of time that we spend dealing with  minor spills,  which are  usually unimportant in comparison to the perfectly legal destruction that goes on around us. As we consume ever more and population soars, the earth warms, species disappear, and subdivisions take over the countryside.   Not to mention wars.

There is a lot that  lawyers and engineers can do to reduce the frequency and severity of spills. Making spills illegal, with serious penalties,  does  encourage organizations to improve their environmental management. Ever since John Braithwaite’s pioneering research in Australian coal mines in the 1980s, it has been clear that thorough, well-documented management systems can  help.  It was differences in management, communication, and the methodical application of precautions that distinguished coal mines having high death rates from those where employees went home at night.    These differences were elaborated into  environmental management systems, like ISO 14000  that are now widely adopted around the world.

But accidents still happen: the Challenger; the Exxon Valdez; Three Mile Island, not to mention Chernobyl and Bhopal. Isn’t there more that we lawyers can do?  Are we really reduced to fighting over who pays for the disaster after it happens?

Environmental law’s most durable successes have probably been bans: on DDT, so that egg shells would stop collapsing beneath  mother birds;  on the slaughter of whales; on PCBs. Banning CFCs stopped the destruction of the ozone layer. The ban on cod fishing  halted further destruction of our once great cod stocks, but not until they had been devastated by “regulated” fishing.  Promises to be careful  just don’t seem to last for long.

But we can’t ban everything. In fact, we don’t seem to be able to ban very much for long. The national wildlife refuge in Alaska has been under constant attack, despite the extreme sensitivity of its fragile and irreplaceable caribou herds. The American moratorium on offshore drilling was lifted just weeks before the Gulf oil spill, as part of President Obama’s campaign to pass a badly needed climate change bill.   (A drill rig immediately set off for Alaska.)  And enforcement is a constant challenge, as we saw this spring when a Chinese oil tanker  plowed into a banned area of the Great Barrier Reef, gushing oil into its critical ecosystem.

Environmental assessment (EA) was supposed to help us figure out, among other things, which risks of failure we cannot bear.   But it doesn’t work very well.  For example, we build nuclear plants, with nowhere to put the waste. If BP had conducted a fuller environmental assessment of its well, it would probably still have  obtained its permit.  Environmental assessment also does a poor job of comparing real-life trade-offs. If the US blocks offshore drilling,  but remains dependent on oil,  it will have to keep buying that oil overseas, from hostile countries. That means constant movements of crude across the oceans in  tankers,  which have their own frequent spills. It also transfers trillions of dollars to those hostile countries and entangles the US in foreign wars. It will be a dreadful irony if the BP oil spill prevents the US from reducing its dependence on oil, and its contribution to climate change.

There is one area, however, in which the legal system makes a clear, simple and unique contribution to making things worse. We  encourage investors, insurers, and other financial players to take  ultra high risks by  capping their exposure to third-party damages.  Canada’s Nuclear Liability Act,

for example, limits the liability of the nuclear industry for a Chernobyl style accident to the relatively tiny amount of $75 million. (A bill  to increase the cap to $650 million  received first reading in April, again.)

Offshore drilling benefits from a similar, enormous, hidden subsidy. The American Oil Pollution Act limits liability to $75 million. Congress now proposes to retroactively change this to $10 billion although BP has undertaken  to pay full compensation. Canada has even lower caps. For example, the Canada-Nova Scotia Oil and Gas Spills and Debris Liability Regulations, SOR/95-123 under the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act,  put a $30 million cap on third-party liability.  If an accident happens,  the general taxpayer,  the natural environment, and nearby communities will bear any extra costs. Thus, profits are privatized while the  public bears the risk.

Would removing the caps help reduce the frequency  and severity of spills? it might. It  would certainly give all the financial players a much greater incentive to take every possible precaution, and perhaps to invest instead in alternative sources of energy. Without such hidden subsidies, would oil look so cheap?

This article was previously published in Lawyers Weekly.

©2010 Environmental Law and Litigation. All Rights Reserved.

There are an estimated 30,000 contaminated sites in Canada. These include properties like former gas stations, factories, or rail yards that are contaminated by heavy metals, organic compounds, or other toxins.  Redevelopment of these sites, which are often found in prime downtown areas, is important to provincial and local governments.

Traditional remediation includes removal of contaminated soil or treatment with chemicals.  These options have been criticized for several reasons, such as their high cost and destructiveness to sites. Plant-based remediation (phytoremediation) is a relatively inexpensive, low-tech approach that may lead to at least partial decontamination and restoration of contaminated sites.  It takes advantage of the natural abilities of some plants to remove contaminants from the environment.

Plant roots absorb contaminants into their leaves, branches and/or stems, which are then harvested and removed, for destruction (usually incineration).  The roots may also capture and prevent migration of soil contaminants.  Plants may break down organic contaminants like petroleum products into less toxic compounds.

Phytoremediation works best on large sites where contaminants are located at a relatively shallow depth and at low concentrations. Several growing seasons may be needed to clean up a site. The technology is not suitable for some sites, such as those that are highly contaminated with metals, which may take decades to clean up.

Among the most critical considerations in selecting a plant species to use in phytoremediation are the following:

Does it work? Plants that are suited to remediation take up toxins into their leaves, stems and roots. A recent study of poplar and willow species that had been irrigated with leachate from landfill showed that selecting the right plant for a site is not a simple process.  Poplars had better update of phosphorus, potassium, sulfur, copper and chloride, while willows absorbed more zinc, boron, iron and aluminum.  Willow leaves had higher calcium and magnesium concentrations, as did poplar stems and roots.  Poplar leaves and willow roots had higher manganese and sodium levels.

Typically, plant species are first tested at the remediation site.  For example, an ongoing Chicago-area phytoremediation project began with testing of native trees, including black willow, to determine effectiveness in taking up metals and organic compounds from soil and groundwater.

Can it survive? Plants must be able to accumulate and tolerate contaminants, to adapt to the climate at the site, and be easy to maintain. They also have to tolerate stressors like pests and diseases, road salt or vehicle exhaust.

Effect on the ecosystem. Non-native plant species could thrive and ultimately threaten the local ecosystem if they escape from the remediation site.

Willows, which grow quickly and are known for their deep roots and ability to absorb large volumes of water, are among the most common tree species used.  They remove a variety of organic and inorganic contaminants, as well as herbicides, pesticides and radionuclides. In Sweden, large-scale willow plantings are used to treat municipal wastewater, landfill leachate, and sewage sludge. Willow roots prevent spread of contaminated water, and the willow can be pruned back hard, yielding a significant amount of (contaminated) plant matter for disposal.

There are several drawbacks to phytoremediation.  Some plants accumulate only certain elements, so the technology may not be applicable to sites where there are mixed contaminants.  As well, with many plant species, there is simply not enough information available to conduct appropriate risk assessments.

There are many unknowns about the technology. For example, what is the risk to animals that eat contaminated plant materials?  In some cases, plants may concentrate toxins, or convert contaminants into more toxic by-products.  Are there health consequences when plants give off vapours that contain high concentrations of volatile substances?  What about toxins in wood and leaves that are used for firewood or mulch?

These concerns and other practical considerations, such as whether the technology can achieve adequate site cleanup, how to monitor it, and even how to categorize the plant waste resulting from cleanup in order that it can be properly disposed of, make phytoremediation complex to regulate.  As yet, standards have not been developed, and it is not clear how phytoremediation fits into the environmental regulatory framework.

On the other hand, phytoremediation may produce plant residues rich in metals that can be recycled. The vegetation reduces erosion by wind and water, and as ground cover, may decrease community exposure to certain contaminants, like lead.  The plant residue that results from the process is much lighter and takes up significantly less space in landfills than does waste from other remediation methods, like excavated soils. The presence of trees and plants in an otherwise desolate landscape makes the sites more appealing and public acceptance has been high.

We are only just starting to understand how plants work to bring toxic sites back to life, and return the environment to its natural state.

©2010 Environmental Law and Litigation. All Rights Reserved.

Off-shore wind turbines will likely have the best winds, but they also involve complex tradeoffs different from those that apply on land. The Renewable Energy Approvals (REA) regulation (O. Reg. 359/09) under the Environmental Protection Act therefore contemplates a special approvals regime for off-shore wind.[i] The Ministry of the Environment (MOE) has now released a discussion paper proposing the new regime.

The key feature is a minimum five kilometre shoreline exclusion zone.[ii] According to the MOE, the proposed shoreline exclusion zone will:

Protect drinking water quality;
Keep noise below 40 decibels, equivalent to night time traffic in a quiet area;
Protect public safety for participants in near-shore activities, such as tourism;
Preserve ecological health (e.g. Biodiversity) in affected lakes) and;
Avoid interference with commodity and product shipment on the Great Lakes.

One obvious tradeoff: much bigger construction and transmission costs. One obvious consequence: forcing Toronto Hydro to move its Lakewind project, which has been fiercely opposed by some residents of the Scarborough Bluffs.

Second, the policy will require turbine developers to submit a very detailed application, including assessments of potential impacts to natural resources; natural, cultural and Aboriginal heritage; coastal engineering studies; and the transparent off-shore wind facility reports.[iii]

In addition to off-shore wind policy, the Ministry of Natural Resources is reviewing the current process of making Ontario’s Crown land

– including lakebeds of Great Lakes – available for off-shore wind projects.[iv] While the first phase of review focused on the basic procedural elements, the second phase will include consideration of where, when and how the government makes Crown land available.  Perhaps we will see a form of lakebed zoning, much as has been proposed for the Atlantic near-shore in the US.

This document will set a precedent for clean energy advancement – a key part of the Ontario’s goal to reduce greenhouse gas (GHG) emissions by up to 30 megatonnes and phase out coal-fired power plants.[v]^,[vi]

Footnotes

[ii] Discussion Paper: Off-Shore Wind Facilities Renewable Energy Approval Requirements, At http://www.ene.gov.on.ca/envision/env_reg/er/documents/2010/011-0089.pdf

[iii] Backgrounder: Ontario Proposes Rules For Off-Shore Wind Turbines. Ministry of the Environment, Newsroom, At http://news.ontario.ca/ene/en/2010/06/backgrounder-ontario-proposes-rules-for-off-shore-wind-turbines.html

[iv] Review of the waterpower and windpower site release policies and procedures. Environmental Registry, At http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTEwMjAw&statusId=MTY1NDQ0&language=en

[v] Ontario’s Renewable Energy Initiative. Ministry of the Environment, At http://www.ene.gov.on.ca/en/business/green-energy/

[vi] Backgrounder: Ontario Proposes Rules For Off-Shore Wind Turbines. Ministry of the Environment, Newsroom, At http://news.ontario.ca/ene/en/2010/06/backgrounder-ontario-proposes-rules-for-off-shore-wind-turbines.html

©2010 Environmental Law and Litigation. All Rights Reserved.

Ontario’s  vehicle emissions control program, Drive Clean, is getting a tuneup.

Amendments to Ontario Regulation 361/98[i] (Motor Vehicles) under the Environmental Protection Act will modernize the Drive Clean program.[ii] By December 12, 2012, the Acceleration Simulation Mode (dynamometer) tailpipe test will be replaced with: [iii],[iv]

1.     On-Board Diagnostic (OBD) emissions test standards and equipment for  cars built since 1998 and;

2.     Two-speed idle (TSI) tailpipe test standards and equipment for 1988 to 1997 model vehicles. (Pre-1988 vehicles are not subject to Drive Clean.)

The new tests will be phased in between November 2011 and December 2012. The Ministry expects them to provide higher test accuracy, more details and quicker results,  and to flag emissions system faults before  they cause serious problems.  In addition, the ministry expects the new tests to cut smog causing pollutants from newer vehicles by  an extra 20%. Older vehicles should see a  7% improvement by 2013.[v]

Drive Clean has helped to offset the steady increase in vehicle  kilometers driven by reducing the pollution emitted per kilometer,  especially of nitrogen oxides (NOx), hydrocarbons (HCs), and greenhouse gases – the biggest contributors to smog and climate change.[vi]

The amendments  will also require improved repair technician training and effectiveness, beginning November 1, 2011.[vii]^,[viii] A request for proposals was posted on MERX Canadian Public Tenders service

by the ministry.[ix]

[ii] Environmental Registry. (June 7, 2010). Drive Clean Regulatory Amendment, At http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA3OTk2&statusId=MTY1MTgx&language=en

[iii] Drive Clean Regulatory Amendment. Service Ontario Regulatory Registry, At http://www.ontariocanada.com/registry/view.do?postingId=2242&language=en

[iv] Environmental Registry. (June 7, 2010). Drive Clean Regulatory Amendment, At http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA3OTk2&statusId=MTY1MTgx&language=en

[v] Environmental Registry. (June 7, 2010). Drive Clean Regulatory Amendment, At http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA3OTk2&statusId=MTY1MTgx&language=en

[vi] Environmental Registry. (June 7, 2010). Drive Clean Regulatory Amendment, At http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA3OTk2&statusId=MTY1MTgx&language=en

[vii] Environmental Registry. (January 28, 2010). Drive Clean Regulatory Amendment, At http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA3OTk2&statusId=MTYyMjUw&language=en

[viii] Drive Clean Regulatory Amendment. Service Ontario Regulatory Registry, At http://www.ontariocanada.com/registry/view.do?postingId=2242&language=en

[ix] Ministry of the Environment. Modernizing Drive Clean: Information for Drive Clean Facilities. Air, At http://www.ene.gov.on.ca/en/air/driveclean/facilities.php

By  Dianne Saxe and  Jessica Yuan

©2010 Environmental Law and Litigation. All Rights Reserved.

There is often tension between the public’s right to commence a private prosecution, and the attorney general’s right to take over that prosecution, often in order to drop it. The Ontario Court of Appeal has given a boost to private prosecutors, ruling that they are entitled to have at least one day in court.

McHale v. Ontario is one of the continuing cases to flow from the First Nations occupation in Caledonia, Ontario, in 2006/7. McHale  strongly objected to the police decision to, as he saw it, protect First Nations lawbreakers instead of  non-aboriginal, law-abiding citizens.  In 2006, he attempted to replace aboriginal flags with Canadian flags and was arrested and put in jail.

In 2007, OPP police Commissioner Julian Fantino wrote an e-mail to Haldimand  County counsellors,  instructing them not to support McHale:

“… in the event any of my officers are injured as a result of further forays into the community by McHale and his followers my position in response will be the following:

1) I will publicly hold accountable Councillor Grice AND Haldimand County along with McHale;

2) I will support any injured officer in the pursuit of civil redress;

3) I will forward the ensuing related costs of policing to Haldimand County, and

4) I will strongly recommend to my Minister that the OPP contract with Haldimand County NOT be renewed once the current contract expires.”

In 2008, McHale swore a private information against Fantino, accusing him of the criminal offence of influencing or attempting to influence municipal politicians, contrary to section 123 of the  Criminal Code. A justice of the peace concluded that the allegations met Criminal Code requirements and received the sworn information.  Under the criminal code, the next step is a pre-enquete, a judicial process to determine whether the accused should be compelled to appear in court to answer the accusation.  Instead, a Crown Attorney   took over and withdrew the charges.

McHale  did not give up. He successfully applied for an order of mandamus, returning the charge to a justice of the peace to hold the pre-enquete. The Attorney General appealed to the Court of Appeal, and lost again.

The Court of Appeal recognized that the attorney general has an absolute right to take over and stay private prosecutions, both at common law, and under the Crown Attorneys Act. First, however,  the informant has a right to appear in court to have his allegations and evidence heard and considered by an impartial tribunal:

[74]         Conduct of the pre-enquete vindicates the interest of the private informant who seeks prosecution of another for an alleged crime.  The pre-enquete assures the private informant that an independent judicial officer will hear the informant’s allegations, listen to the evidence of the informant’s witnesses, and decide whether there this is evidence of each essential element of the offence charged in the information. The pre-enquete also ensures that spurious allegations, vexatious claims, and frivolous complaints barren of evidentiary support or legal validity will not carry forward into a prosecution.  To insist that the withdrawal power await the determination about issuance of process also reduces the risk that the Criminal Code’s provisions for private prosecution will to begin and end with the right to lay a private information.

Following the pre-enquete, the justice of the peace  issues a summons, if she  is satisfied that the accused person should be required to appear in court  to face the accusation. Only then, once the private prosecutor has had this opportunity to establish the legitimacy of his complaint, may the Attorney General intervene.

Does all of this help a private prosecutor? The Attorney General can still block the prosecution, and often does. But a  successful  pre-enquete, resulting in the issuance of a summons, can provide some vindication in public interest cases, where the real battleground is for hearts and minds.

©2010 Environmental Law and Litigation. All Rights Reserved.

Syncrude has been found guilty of two offences relating to the large duck kill of 2008. That April, 1606 migrating ducks died after landing on the toxic tailings pond of the huge Aurora tar sands mine. A member of the Sierra Club laid the original charges, another vindication for private prosecution.
Syncrude was charged with:

• failing to store a hazardous substance in a manner that ensured that it did not come into contact with any animals, contrary to s. 155 of Alberta’s Environmental Protection and Enhancement Act and
• depositing a substance harmful to migratory birds in an area frequented by migratory birds, contrary to s. 5.1(1) of Canada’s Migratory Birds Convention Act. This is a federal statute to fulfil Canada’s international obligations under the Migratory Birds Convention.

In April, Judge Tjosvold dismissed Syncrude’s nonsuit motion. Syncrude had argued that it could not be convicted of the provincial charge because the ducks came to the tailings pond, not the tailings pond to the ducks. Second, Syncrude argued that the ducks didn’t “frequent” the ponds. Third, Syncrude argued that it was impossible to keep all ducks away from the ponds, which it had been specifically authorized to build by the province, and that strict application of environmental laws would prevent all development of the tar sands. Judge Tjosvold found the first two arguments invalid, but invited Syncrude to prove that it had used due diligence to keep the ducks from the pond.
Now, Judge Tjosvold has decided that Syncrude did not use due diligence to deter the ducks, because its deterrents were not employed “early enough or quickly enough”. In fact, the court heard evidence that Syncrude had cut back on staff and resources devoted to keeping birds off its ponds, so that they could not do their job properly. Bad weather made things worse, but did not excuse the entire failure.
In August, the judge will determine whether Syncrude can be convicted of both charges, or only one; Syncrude argues that conviction on both would be barred as “double jeopardy” under the Kienapple rule. Only after that will Judge Tjosvold determine the sentence that should be imposed, which could be a substantial fine.
Meanwhile, Premier Ed Stelmach said he plans regulations to slash the amount of liquid tailings that oil miners generate, which end up in the toxic ponds.

©2010 Environmental Law and Litigation. All Rights Reserved.

When can ministry investigators seize documents outside the scope of a search warrant?

During the execution of a warrant, Ministry of the Environment investigators seized approximately 100 documents that clearly lay outside the scope of the warrant. They showed one set of documents to the company, who consented to the seizure of that particular set of documents. The investigators contended that this consent allowed them to seize other documents, including those not discovered until after the “consent” was given. The investigators did not seek or obtain any written consent to the seizure of the documents, nor did they provide a list of the documents that they wished to seize. Company representatives testified that they were not asked to consent to the seizure of any additional documents, and did not do so.

In a voir dire on the admissibility of the seized documents, Justice Mackey ruled that they were not admissible.  The Crown had the onus of proving that the company had given a clear, informed, and unequivocal consent to the seizure of the documents. In this case, the Crown was unable to prove that the defendants were aware of the identity of the documents that the investigators wished to seize under the purported consent. R. v. Lacombe, Ottawa Court of Justice,  June 7, 2010.

©2010 Environmental Law and Litigation. All Rights Reserved.

The Ontario regulation on brownfields and records of site condition, O. Reg. 153/04, has been amended again.  Ontario regulation 245/10 was filed June 17, 2010.  The changes are minor, primarily the correction of typos and erroneous cross-references.

The Ontario Ministry of the Environment has also announced a new contact person for Brownfields issues:

Rosemary Ash

Team Lead/  Brownfields filing and review

416-314-9058

Rosemary.Ash@Ontario.ca

Rosemary Ash,

©2010 Environmental Law and Litigation. All Rights Reserved.

Soon after our office stopped shaking in today’s second earthquake, I started to wonder again about Ontario’s nuclear plants.  OPG says we shouldn’t worry: “There have been no earthquakes greater than a Magnitude 4 within 50 km of the Pickering nuclear power station over the last 100 plus years.”  This morning’s earthquake is reported to have been a magnitude 3; the afternoon earthquake is now being reported as 5 or 5.5. What does this do to OPG’s  reassuring statistic? And what will our energy regulators do if it has changed?

Here’s another question worth checking: who has earthquake damage insurance coverage?  I don’t think it’s a standard component of home insurance in the Toronto area; I know I had to pay extra to get it. Will we ever need it? I hope not. But it would be so much worse to need it, and NOT have it….

©2010 Environmental Law and Litigation. All Rights Reserved.