Edited by Harry Dahme

FEDERAL NEWS

PROVINCIAL NEWS

ONTARIO

QUÉBEC

BRITISH COLUMBIA

ALBERTA

IN THE COURTS

What's Happening


FEDERAL

Notice with respect to Batch 12 substances identified by the Challenge to Industry

Notice was published in the Canada Gazette on December 26, 2009 of the release of technical information in respect of the twelfth and final group of substances identified under the Challenge to Industry. Industry and interested stakeholders are invited to submit any information that may be used to inform the risk assessment for the substances and to develop and benchmark best practices for risk management and product stewardship by April 27, 2010.

For a list of all 16 substances included in the Batch 12 substances, and to view the technical documentation associated with all 16 substances listed, please see:

http://www.chemicalsubstanceschimiques.gc.ca/challenge-defi/batch-lot-12/index-eng.php#a4 (http://tinyurl.com/yfwcm5c)


Notice with Respect to National Pollutant Release Inventory for 2009

Notice of the National Pollutant Release Inventory ("NPRI") Notice regarding reporting for releases in 2009 was published in Part I of the December 5, 2009 Canada Gazette. The NPRI is Canada's federal inventory of pollutant releases, disposal and recycling from an estimated 8,500 industrial, commercial and other facilities. Reports are required to be submitted before June 1, 2010.

For more information see the Notice itself at: http://www.gazette.gc.ca/rp-pr/p1/2009/2009-12-05/pdf/g1-14349.pdf#page=6 (http://tinyurl.com/yj7rxsh).


Notice in Relation to Tailings and Waste Rock Reporting under NPRI

Notice was given in the December 5, 2009 Canada Gazette, Part 1 that, for the first time, facilities must now consider the quantity of NPRI-listed substances contained in tailings or waste rock to determine whether the releases fall within new mass reporting thresholds of the program.

Prescribed facilities are those whose employees worked a total of 20,000 hours or more for the calendar year and where tailings or waste rock were generated or disposed of as a result of the extraction or recovery of bitumen, coal, diamonds, metals or potash, or the extraction or beneficiation of metallic ore or ore concentrate, in relation to tailings and waste rock for the years 2006, 2007, and 2008.

Mass reporting thresholds exclude the quantities of substances contained in unconsolidated overburden, waste rock that is inert or clean according to a valid federal or provincial operating permit for the facility and components of tailings that are inert, inorganic and have not been reduced in size or otherwise physically or chemically altered during extraction, recovery or beneficiation.

The Notice itself can be viewed as part of the Canada Gazette, Part 1, through the following link: http://www.gazette.gc.ca/rp-pr/p1/2009/2009-12-05/pdf/g1-14349.pdf#page=6 (http://tinyurl.com/yj7rxsh)


Ministerial Condition for a Polymer of 1-Butanol (a Component of Automobile Coating and Refinishing)

Through a Government Notice issued in the December 5, 2009 Canada Gazette, Part I, the Ministers of Environment and Health have determined that 1-butanol, 2,2-bis(2-propenyloxy)methyl-, polymer with 1,1,3,3-tetramethyldisiloxane, 3-(2-hydroxyalkoxy) propyl-, ("1-Butanol") may be toxic. The Minister of the Environment has granted a permit pursuant to paragraph 84(1)(a) of the Canadian Environmental Protection Act 1999 to permit the manufacture or import of the substance provided certain conditions are followed. These conditions allow the importation of the substance as a component of a finished clear coat product to be applied to the exterior of automobiles during refinishing operations, or to blend in order to create a finished clear coat product for this purpose, provided 120 days advance written notice of importation is given to the Minister. The substance may also be manufactured if 120 days before manufacture the Minister is given written notice containing the requisite information. The substance must be destroyed or disposed of through incineration or deposited in a secure landfill. Records must be kept pursuant to the permit for at least five years. Notification requirements are also set out in the case of accidental release.

For more information please see:

http://www.gazette.gc.ca/rp-pr/p1/2009/2009-12-05/html/notice-avis-eng.html (http://tinyurl.com/ykmtjeq)


Notification Regulations proposed as under both CEPA, 1999 and the Fisheries Act

Proposed Release and Environmental Emergency Notification Regulations, pursuant to the Canadian Environmental Protection Act, 1999 (CEPA 1999), and proposed Deposit Out of the Normal Course of Events Notification Regulations, pursuant to the Fisheries Act, were both published in the December 19, 2009 edition of the Canada Gazette Part I.

Provincial, territorial and federal laws require, in most cases, notification of the same events involving a release or a deposit of a substance into the environment. To avoid duplication of effort, the proposed Notification Regulations designate and prescribe, respectively, the persons providing 24-hour emergency telephone service in each province or territory, enabling them to now receive notifications under CEPA, 1999 and the Fisheries Act that would otherwise have been made directly to Environment Canada. The proposed Notification Regulations would come into force on the day on which they are registered.

Corresponding proposed Regulations Amending Certain Regulations Made Under the Fisheries Act, which were also published in the December 19, 2009 Canada Gazette Part I, propose to remove current notification requirements in the Metal Mining Effluent Regulations (MMER) and the Pulp and Paper Effluent Regulations (PPER) on the same day the proposed Deposit Out of the Normal Course of Events Notification Regulations come into force.

For further information, please see:

http://canadagazette.gc.ca/rp-pr/p1/2009/2009-12-19/html/reg4-eng.html (http://tinyurl.com/yflyjy9)


PROVINCIAL NEWS

ONTARIO:

Ontario Securities Commission Notice 51-717: Corporate Governance and Environmental Disclosure

On December 18, 2009, the Ontario Securities Commission ("OSC") issued OSC Notice 51-717 Corporate Governance and Environmental Disclosure (the "Notice"). The stated purpose of the Notice is to communicate the OSC's plans respecting the disclosure of corporate governance and environmental matters by reporting issuers.

This summary focuses on the planned disclosure about environmental matters.

The OSC intends to issue a staff notice providing guidance on compliance with existing environmental disclosure requirements under National Instrument 51-102 Continuous Disclosure Obligations. The staff notice will be published by December 2010 ("2010 Notice"), after a period of consultation, and will provide guidance to reporting issuers preparing annual continuous disclosure filings for 2010. The OSC commenced this initiative in response to a resolution of the Ontario Legislature in 2009 directing the OSC to undertake a broad consultation to establish best practice corporate social responsibility and environmental, social and governance reporting standards.

The OSC initiative will build on existing OSC Staff Notice 51-716 Environmental Reporting (51-716) published in February of 2008 after completing a targeted review of 35 Canadian public issuers. A staff spokesperson for the OSC stated that the 2010 Notice will not include a targeted review like 51-617 but rather, will provide public issuers with further guidance to comply with existing requirements. Potential area of environment-related continuous disclosure requirements highlighted in 51-617 were:

  • Form 51-102F1 (MD&A)
    • Environmental liabilities that involve critical accounting estimates;
    • Material asset retirement obligations.
  • Form 51-102F2 (AIF)
    • Financial and operational effects of environmental protection requirements;
    • Environmental policies implemented by an issuer that are fundamental to its operations;
    • Risk factors relating to the issuer including environmental risks.

The OSC commented that environment-related disclosure in the MD&A and AIF of targeted issuers in most cases required better quantification or more substantive qualitative description (avoiding boilerplate).

Similar guidance is being published in the United States by the Securities Exchange Commission (SEC); albeit with a focus on climate change disclosure. This agency has recently been examining the climate change disclosure obligations of public companies at the behest of advocates of increased climate risk disclosure (mostly large institutional investors). Like Canadian securities laws, SEC regulations require material disclosures by public companies for the benefit of investors. Like the Canadian Securities Administrators, the SEC provides guidance on how to interpret the disclosure rules. The SEC issued a press release on January 27, 2010 announcing the release of interpretative guidance respecting certain existing disclosure rules that may require a company to disclose the impacts that business or legal developments related to climate change may have on its business. The press release highlighted the following areas related to climate change that may trigger the disclosure requirements:

  • Impact of legislation and regulation (including pending legislation and regulation);
  • Impact of international accords and treaties related to climate change;
  • Indirect consequences of regulation or business trends;
  • Physical impacts of climate change on business and operations.

The OSC has not indicated whether the 2010 Notice will specifically focus on climate change guidance as part of the overall environmental guidance. However, there are a number of reasons the 2010 notice is likely to include climate change disclosure guidance:

  • SEC rules and guidance are often a signal to the CSA to re-examine its own policies and rules in a related area;
  • The Canadian federal government is following the US lead in climate change policy and legislation;
  • Ontario is part of the Western Climate Initiative created to evaluate and implement a cooperative regional market-based cap-and-trade system to commence in 2012;
  • The Ontario government introduced Bill 185 on May 27, 2009 enabling the passage of regulations to establish and regulate a GHG cap-and-trade program;
  • Public issuers are already disclosing climate change related impacts on their businesses and operations pursuant to mandatory requirements or voluntarily. Disclosure in the AIF and MD&A can be the subject of a continuous disclosure review by securities regulators.

The OSC has invited securities regulators and staff in other CSA jurisdictions to participate. With the backdrop of the national securities regulator initiative and current provincial constitutional references, it will be interesting to see who, if any, may join the OSC in preparing this guidance. If the 2010 Notice is issued by the OSC only, it will exert considerable influence since the guidance applies to public issuers who are reporting issuers in Ontario irrespective of the location of their head office.

For more information please contact Patricia Leeson at patricia.leeson@gowlings.com.


Habitat for Endangered Species Defined

Notice was given in the Ontario Gazette, Part III, on December 5, 2009 of two regulations (O. Reg. 436/09 and O. Reg. 437/09) that amend the General Regulation under the Endangered Species Act, 2007, O. Reg. 242/08, to add definitions for habitat of 9 specific endangered species for the purpose of habitat protection provisions of the Endangered Species Act, 2007. The species affected include: the American badger, the barn owl, the wood turtle, the Eastern Prairie fringed-orchid, Engelmann's quillwort, the Few-flowered club-rush or bashful bulrush, the Jefferson salamander, the Peregrine falcon, the Western silvery aster.

The amendments to O. Reg. 242/08 identifying habitat for each of the above-listed species came into force on February 18, 2010, at which time the prohibitions against damage to habitat identified for each of these species, as set out section 10 of the Endangered Species Act, 2007, also came into force. For any species that do not have habitat defined by a regulation made under clause 55(1)(a) of the Act, section 10 and the prohibition on damage to habitat does not come into force until the 5th anniversary of the enactment of the statute, which is June 30, 2013.

O. Reg. 242/08, as amended, can be viewed at

http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_080242_e.htm (http://tinyurl.com/yhhymw9)


Greenhouse Gas Emissions Reporting Now Required

On December 1, 2009, Ontario's Greenhouse Gas Emissions Reporting Regulation (O. Reg. 452/09) (the "Regulation") came into force. Under the Regulation, industrial facilities in Ontario that release 25,000 tonnes of carbon dioxide equivalent ("CO2e") will be required to report their emissions data to the government of Ontario on an annual basis. Ontario estimates that between 200-300 facilities will be subject to the Regulation's reporting requirements, including facilities that generate greenhouse gases from the following sources: aluminum production, cement manufacturing, copper production, electricity generation, iron/steel manufacturing, lead production, petroleum refining, pulp and paper manufacturing and zinc production.

The first annual reporting period under the Regulation began on January 1, 2010, with the emissions report for the 2010 period due on or before June 1, 2011. The Regulation specifies the contents of the emissions report and along with an accompanying guideline, provides rules for quantifying CO2e emissions. Third party verification of emissions reports according to ISO requirements will be phased-in for the 2011 reporting period and will continue thereafter. Although not subject to the Regulation, smaller emitters (facilities emitting between 10,000 and 25,000 tonnes of CO2e) will be encouraged to report their emissions under the Regulation on a voluntary basis under an outreach program to be developed by the Ministry of the Environment.

The purpose of the Regulation is to facilitate the development of a cap-and-trade system in Ontario, with linkages to other jurisdictions in North America. To that end, the Government of Ontario has pledged to continue to work with the federal government, other provincial governments, and its Western Climate Initiative partners to harmonize greenhouse gas reporting requirements and methods.

For more information or to receive a copy of Gowlings' Climate Change Bulletin please access the following link: http://www.gowlings.com/resources/newsletterResults.asp?issueTypeId=149 (http://tinyurl.com/ykotg54)


Environmental Commissioner of Ontario releases 2008/2009 Annual Greenhouse Gas Progress Report

On December 8, 2009, one week after the Province's Greenhouse Gas Emissions Reporting Regulation (O. Reg. 452/09) came into force, the Environment Commissioner of Ontario released its 2008/2009 Annual Greenhouse Gas Progress Report as submitted to the Legislative Assembly of Ontario. The Annual Report provides a review of the Ontario Government's progress in reducing greenhouse gas emissions for 2008/2009, as outlined in the Government's "Climate Change Action Plan" that was tabled by the Honourable Minister of the Environment in the Legislative Assembly on December 2, 2009.

The Report concluded that Ontario is not on track to meet its emissions reductions targets which, in 2007, were identified as follows:

  • 6 per cent below 1990 levels by 2014;
  • 15 per cent below 1990 levels by 2020; and
  • 80 per cent below 1990 levels by 2050.

The Report states that "The government seems to have lost its vision of what a carbon reduction plan should be pursuing. A plan that conservatively focuses on current best practice is no substitute for a plan with a vision for the future – a vision for change". For more information please see:

http://www.eco.on.ca/eng/index.php/pubs/eco-publications/finding-a-vision-for-change.php#main (http://tinyurl.com/yjvtm9k)


Toxics Reduction Act Now In Force

On January 1, 2010, the Toxics Reduction Act, 2009 came into force, with some exceptions, requiring facilities in designated manufacturing and mineral processing sectors to:

  • track and quantify the toxic substances they use, create or release ("toxic substances" are those listed in Schedule 1 of the National Pollutant Release Inventory as well as acetone);
  • prepare a toxic substance reduction plan for each substance identified above;
  • prepare summaries of the plans and make them available to the public;
  • report to the Ministry of Environment on their progress in reducing toxic substances.

Provisions of the Act not proclaimed in force on January 1, 2010 primarily deal with administrative monetary penalties, while other provisions not currently in force include the requirement to have plans certified by a person designated by regulation and provisions dealing with substance of concern reports.

At the moment, reporting to the Ministry under the Act is mandatory, while implementation of a toxics reduction plan remains discretionary.

To view the act in its entirety, please see

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_09t19_e.htm (http://tinyurl.com/yh94u7v)


Ontario Introduces Sector-Based Technical Standards to Manage Air Pollution under O. Reg. 419/05

Amendments to O. Reg. 419/05 were filed on December 30, 2009 which recognizes that the contaminant-based air quality standards under O. Reg. 419/05 can present common or similar implementation challenges for more than one facility within a sector. The amendments provide the Minister with the authority to establish sector-based standards that can be applied to facilities within those sectors in lieu of the current requirement to comply with Point of Impingement concentrations for air standards under O. Reg. 419/05.

A facility that chooses to follow the sector-specific technical standard is required to register with the Ministry of the Environment to indicate that this is the chosen compliance option. The MOE is currently developing a Technical Standards Registration Process which would allow the MOE to post registration of facilities under this option on the MOE website, ensuring that the public is aware of the facility's compliance requirements.

Currently, technical standards have only been introduced for facilities within the Foundry and Forest Products sectors.

For more information, please see:

http://www.ene.gov.on.ca/en/air/ministry/index.php#ts (http://tinyurl.com/ylev5xr)


Updated Registration Guidance Manual for Generators of Liquid Industrial and Hazardous Waste Available

The amended Registration Guidance Manual for Generators of Liquid Industrial and Hazardous Waste was released by the MOE on December 24, 2009. The Guidance Manual is aimed at assisting waste generators, carriers and receivers to understand their obligations and facilitate compliance with the requirements of Regulation 347 with respect to the management of hazardous wastes and liquid industrial wastes.

The Manual was first released in 1995, with the last revision occurring in 2001. The following key elements have been added to the Manual.

  • Updated information on who needs to register, an overview of hazardous waste rules and new requirements for generators, carriers and receivers.
  • Discussion on how to determine appropriate waste classes for waste streams.
  • Updated schedules of hazardous wastes (capturing the hazardous waste number, waste description and corresponding Land Disposal Restrictions (LDR) treatment requirements).
  • Information on new requirements to improve the management of subject wastes, including mixing, blending and bulking and on-site storage and processing requirements.
  • Additional information about on-line registration and manifesting through the Hazardous Waste Information Network ("HWIN"), including the additional information required to meet LDR reporting and notification requirements.
  • Information on the HWIN List of Recycling Facilities, including its purpose and how companies are placed on the list.
  • Details on amendments that facilitate recycling of specific wastes and proper management of wastes from field operations and the use of alternative fuels and new or emerging waste technologies through streamlined approvals processes.
  • A description of the LDR program and how it prohibits the land disposal of hazardous wastes unless treated to meet specific standards.
  • Information on the LDR requirements, including:
    • enhanced generator registration reporting and notification requirements
    • record-keeping and waste analysis plan requirements
    • processing requirements for hazardous wastes affected by the treatment standards
    • a series of questions and answers on key aspects of the program and its requirements.

The release of the updated Manual coincided with the Ministry's release of the Land Disposal Restrictions (LDR) Handbook which provides information about the Land Disposal Restrictions program and how the new LDR requirements affect waste streams, facilities and operations described within the Manual.

Both are available on the Ministry's website at:

http://www.ene.gov.on.ca/en/land/hazardouswaste/hazardouswaste.php (http://tinyurl.com/yksr5oq)


Environmental and Land Use Planning Cluster

Michael Gottheil, former chair of the Human Rights Tribunal of Ontario, has been nominated to serve as the cross-appointed Chair of the newly formed Environment and Land Use Planning Cluster. The Environment and Lands Tribunal "Cluster" consists of the Assessment Review Board, Board of Negotiation, Conservation Review Board, Environmental Review Tribunal, and Ontario Municipal Board.

Mr. Gottheil will ultimately oversee all 5 boards, exercising the responsibilities of Chief Executive Officer for all tribunals, as part of an initiative by the Ontario government to streamline and improve public accountability of tribunal practices.

The clustering of these agencies serves as another step towards the enactment of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (Ontario) which has yet to have been proclaimed, but which received Royal assent as part of the Good Government Act, 2009 passed on December 15, 2009.

When in force, the Act will require the clustered agencies to jointly draft and implement policies outlined within several public accountability documents, including a mandate and mission statement, a public consultation policy, a service standard policy, an ethics plan, and a member accountability framework. The consultation plan will describe how the tribunal will consult with the public when it is considering changes to its rules or policies. The service standard policy will set out the standards of service that the tribunal intends to provide and a process for making, reviewing and responding to complaints about the tribunal's service. The member accountability framework will provide a description of the functions of the members of the tribunal and a description of the skills, knowledge, experience, other attributes and specific qualifications required of a person to be appointed as a member of the tribunal as well as a code of conduct for the members of the tribunal.

The Act also requires the clustered agencies to jointly prepare governance accountability documents, including a memorandum of understanding, a business plan and an annual report to be entered into and/or approved by the Attorney General within regularly scheduled intervals, as applicable.

The Act is available on e-laws in anticipation of its imminent proclamation. To view the Act please see:

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_09a33_e.htm (http://tinyurl.com/yfmxg67)


Toronto's Eco-Roof Incentive Program

The City of Toronto is now accepting applications for its Eco-Roof Incentive Program, an initiative designed to promote the use of green and cool roofs on Toronto's industrial, commercial and institutional buildings, and to help Toronto's business community take action on climate change.

Eligible projects include:

  • any green or cool roof on an existing industrial, commercial or institutional building within an employment district in Map 2 of the Toronto Official Plan;
  • any above grade green roof on a new industrial building with a gross floor area (GFA) of 10,000 m2 (107,600 sq ft) or greater; and
  • any green roof on a new institutional or commercial building with a GFA of less than 2,000 m2 (21,528 sq ft).

Projects must be above grade; parking garages and at-grade roofs are ineligible.

Owners who install a green roof, which supports vegetation, can apply for a grant of $50 per square metre up to $100,000. Cool roofs, which feature a membrane or coating to reflect the sun's rays, are eligible for $2-5 per square metre up to $50,000.

Applications will be accepted online until April 1, 2010. A second round of funding will be available in the fall.

For more information please see:

http://www.toronto.ca/livegreen/bus_eco-roof.html (http://tinyurl.com/yg9mhgz)


QUÉBEC:

Quebec Applies California Standards to Greenhouse Gas Emissions from Motor Vehicles

Québec's Regulation in respect of greenhouse gas emissions from motor vehicles, whose standards are equivalent to those in force in California, came into effect in on January 14, 2010. The enactment of this Regulation makes Québec the first Canadian province to actually apply and enforce North America's strictest auto emissions standards.

The Regulation applies to all 2010-2016 cars and light trucks sold, leased or marketed in Québec. Manufacturers will be required to ensure that for each of these model years, their average fleet GHG emissions do not exceed regulatory levels. Any vehicles not meeting the standards will be subject to an additional $5,000 per vehicle fee. All sums obtained are then paid into the province's Green Fund, established by section 15.1 of the Act respecting the Ministère du Développement durable, de l'Environnement et des Parcs.

The coming into effect of this regulation is being hailed by the Québec Government as an important step towards realizing the goals of Québec's 2006-2012 Climate Change Action Plan, and further as a determinant factor in reaching Québec's independently set 2020 GHG emission reduction target.

The regulation is available in English and French on the website of the Ministère du Développement durable, de l'Environnement et des Parcs at:

http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=3&file=/Q_2/Q2R6_001_A.HTM (http://tinyurl.com/yj75kfx)


Reminder of Wastewater Characterization Obligation under the MMC By-law

Although the new wastewater discharge standards set forth by By-law 2008-47 of the Montréal Metropolitan Community (MMC) will only come into force on January 1, 2012, the By-law does impose certain obligations that must be complied with prior to that date. The By-law entitled Règlement numéro 2008-47 sur l'assainissement des eaux applies to all municipalities within the territory of the MMC and provides that designated industrial facilities must inform the municipality of the nature of their wastewater discharges to the sewer system where: they discharge more than 10,000 cubic meters per year; or, if the discharged volume is less than 10,000 cubic meters per year, the wastewater discharged contains one or more of the contaminants designated by the By-law such as heavy metals, cyanide, fluoride, mineral oil and greases or PCBs.

The designated industrial facilities are required to characterize their wastewater before April 30, 2010. The wastewater characterization report must also be attested by a "competent person" (such as a member of the Québec Order of Engineers, Order of Chemists or Order of professional technologists) and be submitted to the municipality where the industrial facility is located within 180 days following the date of the sampling. Further, the industrial facility is required to submit a corrective plan to the municipality if the characterization results do not meet the applicable standards. A new facility will, within six months after a new establishment begins its operation, be required to perform a wastewater characterization and submit the results to the municipality. A new characterization is also required if an industrial facility significantly changes the nature or the level of its production or if the characteristics of its wastewater were to change. Sample analyses must be performed by a laboratory certified by the Ministry of Sustainable Development, Environment and Parks.


Quebec GHF Inventory for 2007 Confirms Lowest Levels

On February 1st, the Minister of Sustainable Development, Environment and Parks, tabled the 2007 inventory of greenhouse gas ("GHG") emissions for Québec and their evolution since 1990. The report shows that while GHG emissions increased by 3,7% between 2006 and 2007, the province still maintains the lowest level of GHGs per capita of 11.5 tons compared to the national average of 22.7 tons per capita. With the implementation of the Québec Climate Change Action Plan 2006-2012 the Minister indicted that better results are likely to be achieved in 2008 and onwards.


Deadline for the Mandatory Declaration Applicable to Water Withdrawals

March 31, 2010 is the deadline under the Regulation respecting the declaration of water withdrawals to submit to the Ministry of Sustainable Development, Environment and Parks the required declaration of any water withdrawal directly from a source (i.e. groundwater, a watercourse or a lake) that totals an average daily volume of 75 cubic meters or more for the year 2009. This obligation applies to municipalities, industries and businesses and establishments that are not connected to municipal waterworks. The declaration must state namely the identity of the person making the declaration, the sector of activity involved, the location of all water withdrawal sites and, for each site, the site's coordinates, the water source, the quantity and type of use of the water withdrawn. More information as well as a user guide is available on the MSDEP's web site at: http://www.mddep.gouv.qc.ca/eau/prelevements/index.htm (http://tinyurl.com/yhkgmup)


BRITISH COLUMBIA:

B.C. Government seeks input on cosmetic use of pesticides

On December 16, 2009, B. C. posted a public consultation discussion paper entitled Cosmetic Use of Pesticides in British Columbia: Public Consultation Paper. Comments could be submitted until February 15, 2010 on a number of issues, including: how to define the cosmetic use of pesticides, when it is appropriate to use pesticides and how to best regulate specific pesticides that have both cosmetic and non-cosmetic uses.

The results of the consultation, including a summary of all the comments received are slated to be made public in the spring of 2010, along with information about any next steps to address cosmetic use of pesticides in British Columbia.

More information is available at:

http://www.env.gov.bc.ca/epd/ipmp/regs/cosmetic-pesticides/consultation.htm (http://tinyurl.com/ygcbwut)


B.C. Introduces New Recycling Regulations

On December 21, 2009, B.C. announced that antifreeze and lead-acid batteries will be required to be part of producer-led recycling programs, requiring producers to develop, and submit for approval, recycling programs for these products by July 2011.

Antifreeze containers will also be included in recycling regulations. By July 2011, "people will be able to recycle antifreeze and its container as easily as oil, pesticides and paint."

The lead-acid batteries included in the regulation are commonly found in cars, boats, motorcycles and locomotives. Recycling rules for these batteries are being brought into line with other industry-led recycling programs in B.C. Previously, lead-acid batteries were subject to a government-imposed fee which was then available to offset recycling costs faced by processors. With industry-led recycling programs government does not collect fees, although industry may choose to set their own fees to defray costs of recycling.

Producers that wish to develop a Product Stewardship Plan under Part 2 of the regulation must submit that plan to the Director for approval by October 1, 2010.

For more information, see http://www.env.gov.bc.ca/epd/recycling/new.htm (http://tinyurl.com/yls9j6f)


B.C. Takes Further Step Towards Developing a Cap and Trade System

As of January 1, 2010, all facilities in British Columbia that emit over 10,000 tonnes of greenhouse gases ("GHGs") annually are required to report their emissions. Those reporting operations with emissions of 25,000 tonnes or greater are required to have emissions reports verified by an independent third party.

It is expected that approximately 200 facilities will be required to report annually under the Reporting Regulation to the Greenhouse Gas Reduction (Cap and Trade) Act.

More information, as well as a Methodology Manual, Verification Manual and an Emissions Estimator are available on the B.C. Ministry of Environment Website at:

http://www.env.gov.bc.ca/epd/codes/ggrcta/reporting-regulation/index.htm (http://tinyurl.com/yjf3a9a)


ALBERTA:

Alberta Environment releases Draft Technical Guidance for Offset Projects

In December 2009, Alberta Environment released a Draft Report entitled Technical Guidance for Offset Project Developers for public review and comments to be received before January 7, 2010.

The purpose of the Draft Report is to assist Offset market participants in implementing Offset projects where the intended final purchaser is a facility regulated under the Specified Gas Emitters Regulation. The guide then goes on to outline the process and requirements for undertaking offset projects in Alberta. A finalized Report is expected to be released in the spring of 2010.

While the comment period is now closed, the draft report is still available for review on Alberta Environment's website at

http://environment.alberta.ca/1238.html (http://tinyurl.com/yf4s9xa)


IN THE COURTS

Reasonable Foreseeability required for Historic Contamination, Court of Appeal overturns Berendsen

On December 1, 2009 the Ontario Court of Appeal released its decision in the case of Berendsen v. Ontario, overturning the 2008 trial decision that had awarded more than $1.7 million dollars in damages against the Province of Ontario for burying road waste (asphalt and concrete) under the plaintiffs farmland in the 1960s, thereby causing the contamination of their well water and the resulting health problems and under-production of their dairy herd.

The Berendsens' purchased the dairy farm in 1981. Soon after their purchase, the Berendsens' cows began to suffer serious health problems and to produce an unusually low quantity of milk. In 1994, the Berendsens' sued the Province of Ontario, through the Ministry of Transportation, in negligence for depositing the waste and then failing to remove the contamination. This, they alleged, resulted in harmful chemicals from the waste migrating to the wells on their property, thereby contaminating the well water and making it unpalatable for the cows.

After a 15-year legal battle, including a five-week trial, the trial judge found in favour of the Berendsens on both branches of their claim, finding that the Province of Ontario had breached the "standard of care" owed to the Berendsens' by negligently depositing and then failing to remove the waste. The Court of Appeal disagreed.

The Court of Appeal found that for the Berendsens' to succeed in showing that the Province had breached the "standard of care" owed to the Berendsens' and therefore being found to be negligent for the deposit of the waste onto their property, the Berendsens had to show that, back in the 1960s when the Province deposited the asphalt and concrete waste on the dairy farm, harm to the cattle from this buried waste was a "reasonably foreseeable" risk. In this respect, the Court of Appeal emphasized that the "foreseeability of harm" had to be assessed from when the conduct in issue occurred, being the 1960s, and not from the present day when much more about the risks of toxicity from waste material is known. The Berendsens were unable to put forward evidence that the risk was forseeable in the 1960's. Indeed, the Court of Appeal found there was considerable evidence considerable evidence "going the other way – suggesting that harm to the Berendsens' well water and to its herd from the deposit of waste materials was not foreseeable in the 1960s."

The Court of Appeal decision confirms what was assumed to be the status of the law prior to the 2008 trial decision, being that courts must assess "foreseeability of harm" based upon evidence of what was "reasonably foreseeable" at the point in time the contamination is discharged or deposited, rather than what may be foreseeable today.

The Court of Appeal's decision can be viewed at:

http://www.canlii.org/en/on/onca/doc/2009/2009onca845/2009onca845.html (http://tinyurl.com/yz2uv6b)


What's Happening

Gowlings will hold its Environmental Law for Business - 2010 seminar on April 29, 2010. This complimentary full day seminar will be presented by members of the Gowlings' Environmental Law National Practice Group along with guest speakers. As in previous years, there will be a variety of topics. This year topics include: an Update on Climate Change; Corporate Environmental Reporting Obligations; Water; Green Energy; and, changes to Ontario's Brownfields Regulation. For further information or to register please phone or e-mail Nory Paredes at (416) 862-5746 or nory.paredes@gowlings.com

15th Annual Contaminated and Hazardous Waste Site Management Course – From May 3 to 7, 2010, GOwen Environmental will be offering its comprehensive one week indoor-outdoor contaminated and hazardous waste site management course. Topics covered include hydrogeology and geochemical principles, site assessment procedures, risk assessment and risk management tools, remediation technologies and environmental law applicable to contaminated sites.

For more information, visit http://www.contaminatedsite.com/ (http://tinyurl.com/yzwyhe6).

Paul Granda of our Montréal office and Alan Blair of our Vancouver office will both be speaking at the International Environmental Lawyers Network conference on April 9, 2010 in Buenos Aires, Argentina. Paul Granda will provide a Canadian perspective on environmental issues and concerns relative to mining and oil and gas projects including environmental impact assessments and public hearings while Alan Blair will speak on environmental due diligence in the context of mergers and acquisitions and real estate transactions.

Paul Granda of our Montreal Office will also be speaking on the rights and obligations of an owner or lessee of land relative to contamination at the Insight Conference "Conférence sur les terrains contaminés" in Montréal on May 31st and June 1st, 2010. Paul will also be speaking on the rights and obligations of an owner or lessee of land relative to contamination at the Insight Conference "Conférence sur les terrains contaminés" in Montréal on May 31st and June 1st, 2010

Patricia Leeson of our Calgary Office will be speaking at an Insight Conference being held on April 27 and 28 - "Environmental Law and Regulation in Alberta". She will be co-presenting with Robert Savage who heads the Climate Change Secretariat at Alberta Environment. The topic is "Staying Compliant and Ahead of the Curve on Climate Change Issues".

On March 1, 2010 Harry Dahme spoke to the Ontario Real Estate Association's Ontario Commercial Council and Federation on the impact of recent changes to Ontario's Brownfields Regulation.

Jennifer Mesquita of our Toronto office spoke on product stewardship and waste diversion programs at the RIELA 2010 Latin American Environmental Law Conference: Practical Solutions for a Changing Landscape in Houston on February 26, 2010, and attended the inaugural meeting of the RIELA Corporate Advisory Council. Patricia Leeson of our Calgary office also attended and spoke on the Oil Sands and climate change. RIELA is the Spanish acronym for Inter-American Network of Environmental Law Specialists. Gowlings is the only Canadian law firm belonging to the Network. The Corporate Advisory Council is a forum for in-house counsel and environmental and health and safety specialists from multinational corporations active in Latin America to canvass issues of concern, share their experience and interact with RIELA members.

If you require assistance in the area of environmental law in any of the countries of Latin America, please contact Jennifer Mesquita. Jennifer will ensure that you receive newsletters and advance notice of legislative changes for the jurisdictions in which you operate, and if required, will refer you to a trusted partner firm that specializes in environmental law in a member country. Next year's meeting will be held in Puerto Rico.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.