Canada’s draft 2019–2022 Federal Sustainable Development Strategy: Impacts on Clean Technology and Brownfield Development

The Government of Canada recently released the Draft 2019–2022 Federal Sustainable Development Strategy for public consultation and tabled the Government’s 2018 Progress Report of the 2016–2019 Federal Sustainable Development Strategy.

The draft Strategy sets out the Government of Canada’s environmental sustainability priorities, establishes goals and targets, and identifies actions that 42 departments and agencies across government will take to reduce greenhouse gas emissions from their operations and advance sustainable development across Canada.

Of interest to professionals in the environmental sector is some of the Government’s goals with respect to the greening of government. For example, the Government is aiming to reduce greenhouse gas emissions from federal government facilities and fleets by 40% by 2030 (with an aspiration to achieve this target by 2025) and 80% below 2005 levels by 2050. It also has the goal to divert at least 75% (by weight) of all non-hazardous operational waste (including plastic waste) by 2030, and divert at least 90% (by weight) of all construction and demolition waste (striving to achieve 100% by 2030), where supported by local infrastructure. The administrative fleet will be comprised of at least 80% zero-emission vehicles by 2030 according to the draft report.

With respect to real property, the proposed actions of the Canadian federal government include the following: (1) All new buildings and major building retrofits will prioritize low-carbon investments based on integrated design principles, and life-cycle and total cost-of-ownership assessments which incorporate shadow carbon pricing; (2) Minimize embodied carbon and the use of harmful materials in construction and renovation; and (3) Departments will adopt and deploy clean technologies and implement procedures to manage building operations and take advantage of programs to improve the environmental performance of their buildings.

For professionals involved in clean technology, the draft report calls for the implement of the Government’s pledge to double federal government investments in clean energy research, development and demonstration from 2015 levels of $387 million to $775 million by 2020.

The 2018 Progress Report shows how the Government of Canada is implementing the 2016–2019 Federal Sustainable Development Strategy, demonstrating that it is on track to meeting many of the commitments laid out in the Strategy. This includes highlighting the leadership role Canada has taken in working toward zero plastic waste and implementing measures to conserve marine areas, as well as actions on climate change.

With respect to clean technology, clean energy, and clean growth, the progress report touts the fact that through three consecutive federal budgets, the Government of Canada has made substantial investments in initiatives to support clean technology, clean energy and clean growth. These commitments include: (1) $2.3 billion in 2017 for clean technology and clean energy research, development, demonstration, adoption, commercialization and use; (2) $1.26 billion in Budget 2017 for the Strategic Innovation Fund; and (3) $4 billion in 2018 in Canada’s research and science infrastructure, much of which helps drive innovation towards a clean growth economy.

The draft Strategy updates the 2016–2019 Federal Sustainable Development Strategy, largely maintaining its aspirational goals while adding targets that reflect new initiatives, updating milestones with new priorities, and strengthening links to the 2030 Agenda for Sustainable Development. In all, 29 medium-term targets support the draft Strategy’s goals, along with 60 short-term milestones and clear action plans.

Among other results, the 2018 Progress Report shows that

  • from 2016 to 2017, greenhouse gas emissions from federal government operations were 28 per cent lower than in 2005 to 2006—more than halfway to the target to reduce emissions from federal buildings and fleets by 40 per cent of 2005 levels by 2030;
  • as of December 2017, close to 8 per cent of Canada’s coastal and marine areas were conserved; and
  • from 2017 to 2018, visits to national parks and marine conservation areas increased by 34 per cent above the 2010 to 2011 baseline levels.

Canadians have the opportunity to provide comments on the draft Strategy until early Spring 2019. For further information: Caroline Thériault, Press Secretary, Office of the Minister of Environment and Climate Change, 613-462-5473.

Technology Simultaneously Measures 71 Elements in Water

Researchers at New York University (NYU) recently developed a new method for simultaneous measurement of 71 inorganic elements in liquids — including groundwater. The method, utilizing sequential inductively coupled plasma-mass spectrometry, makes element testing much faster, more efficient, and more comprehensive than was possible in the past.

The NYU researchers studied samples of liquid from a variety of sources worldwide, including tap water from a New York City suburb, snow from Italy and Croatia, rain from Brazil and Pakistan, lake water from Switzerland and Croatia, and seawater from Japan and Brazil.  Testing each sample results in a distinct elemental pattern, creating a “fingerprint” that can help differentiate between substances or trace a liquid back to its environmental origin.

The method—developed by researchers at the isotope laboratory of NYU College of Dentistry and described in the journal RSC Advances, published by the Royal Society of Chemistry—may be used to explore and understand the distribution of inorganic elements beyond the few that are typically measured. It has implications for fields such as nutrition, ecology and climate science, and environmental health.

An analytical technique called inductively coupled plasma mass spectrometry (ICP-MS) is used to measure elements. Historically, ICP-MS instruments have measured elements sequentially, or one by one, but a new type of ICP‐MS instrument at NYU College of Dentistry and roughly two dozen other places around the world has the potential to measure the complete range of inorganic elements all at once.

NYU ICP-MS

“Because of this new method, our mass spectrometer can simultaneously measure all inorganic elements from lithium to uranium. We’re able to measure the elements in far less time, at far less expense, using far less material,” said Timothy Bromage, professor of biomaterials and of basic science and craniofacial biology at NYU College of Dentistry and the study’s senior author.

This technological advancement may help to fill gaps in our understanding of element distributions and concentrations in substances like water. For instance, the U.S. Environmental Protection Agency monitors and sets maximum concentration limits for 19 elements in drinking water considered to be health risks, yet many elements known to have health consequences—such as lithium or tin—are neither monitored nor regulated.

“The elemental mapping of concentration levels in bottled and tap water could help to increase our understanding of ‘normal’ concentration levels of most elements in water,” said Bromage.

Bromage and his colleagues designed a method for using simultaneous ICP-MS to detect 71 elements of the inorganic spectrum involving a specific set of calibration and internal standards. The method, for which they have a patent pending, routinely detects elements in seconds to several minutes and in samples as small as 1 to 4 milliliters.

In each sample,​ Bromage and ​his team found ​a distinct ​“​fingerprint”​ or elemental ​pattern, ​suggesting that ​samples can be ​recognized and ​differentiated ​by these ​patterns. The ​elemental ​content of ​water, for ​example, ​typically ​reflects its ​natural ​environment, so ​understanding ​the elemental ​composition can ​tell us if ​water had its ​origins from a ​source with ​volcanic rock ​versus ​limestone, an ​alkaline rock.

United States: Successor Liability for Environmental Liabilities

by Julie Vanneman, Director, Cohen & Grigsby

What happens when one company acquires the assets of another, then—many years later—receives a demand to participate in the clean-up of a contaminated site based on the acquired company’s long-ago shipment of materials to the site? 

As a general rule, the buyer of assets in an asset acquisition does not automatically assume the liabilities of the seller. However, under the doctrine of successor liability, a claimant may be able to seek recovery from the purchaser of assets for liabilities that were not assumed as part of an acquisition. This claim may be employed in cases involving environmental liabilities, especially when the original party is defunct or remediation costs are greater than the original entity’s ability to pay for the cleanup.[1]

Courts have taken different positions on whether state law or federal common law governs the determination of successor liability for claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), known also as Superfund. This distinction may have little practical effect because federal common law follows the traditional state law formulation. Notably, though, when evaluating successor liability under federal law, and specifically environmental laws like CERCLA, the doctrine may be more liberally applied because of policy concerns about contamination.[2]

Under the successor liability doctrine, a buyer can be held responsible for liabilities of the seller if one of four “limited” exceptions applies:

(1) the successor expressly or impliedly agrees to assume the liabilities; (2) a de facto merger or consolidation occurs; (3) the successor is a mere continuation of the predecessor; or (4) the transfer to the successor corporation is a fraudulent attempt to escape liability.

K.C.1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1021 (8th Cir. 2007) (citing United States v. Mex. Feed & Seed, Co., Inc., 980 F.2d 478, 487 (8th Cir. 1992)). A fifth exception, the substantial continuity exception, is a broader standard,[3] but most circuit courts do not apply it in CERCLA cases.[4]

Exception 1, express or implied assumption, must be analyzed in terms of the specific asset agreement in question. Exception 4, fraud, is generally employed in circumstances where the acquired company shifts its assets to avoid exposure to another entity.[5]

Courts have addressed the main issue of successor liability by asking whether the transaction is simply the handing off of a baton in a relay race (successor liability) or whether the new company is running a separate race (no liability).[6]  Examining factors relevant to the remaining elements—numbers 2 (de facto merger) and 3 (continuation)—helps answer the question. Under the doctrine of a de facto merger, successor liability attaches if one corporation is absorbed into another without compliance with statutory merger requirements. A court would look at whether there is a continuity of managers, personnel, locations, and assets; the same shareholders become part of the acquirer; the seller stops operating and liquidates; and the acquirer assumes the seller’s obligations to continue normal business operations.[7]  The “mere continuation” theory “emphasizes an ‘identity of officers, directors, and stock between the selling and purchasing corporations.’”[8]

Given the high stakes that can be involved with CERCLA cleanups, assessing prospects for applying the successor liability doctrine could be an important part of the liability analysis.


[1] See, e.g., James T. O’Reilly, Superfund and Brownfields Cleanup § 8:16, at 360 (2017-2018 ed.) [hereinafter O’Reilly] (“Mergers, sales of assets, and changing corporate names does not remove potential CERCLA liability.”).

[2] See O’Reilly § 8:16; see also, e.g.In re Acushnet River & New Bedford Harbor Proceedings re Alleged PCB Pollution, 712 F. Supp. 1010, 1013-19 (D. Mass. 1989) (in the CERCLA context, concluding that successor liability applied where there would be “manifest injustice” if one of the companies could “contract away” liability for PCB contamination).

[3] See K.C.1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1022 (8th Cir. 2007)

[4] See Action Mfg. Co. v. Simon Wrecking Co., 387 F. Supp. 2d 439, 452 (E.D. Pa. 2005).

[5] See, e.g., Eagle Pac. Ins. Co. v. Christensen Motor Yacht Corp., 934 P.2d 715, 721 (Wash. Ct. App. 1997). This exception is rarely used. Restatement (Third) of Torts:Prod. Liab. § 12 cmt. e (Am. Law Inst. 1998).

[6] See, e.g.Oman Int’l Fin. Ltd. v. Hoiyong Gems Corp., 616 F. Supp. 351, 361-62 (D.R.I. 1985).

[7] Asarco, LLC v. Union Pac. R.R. Co., No. 2:12-CV-00283-EJL-REB, 2017 WL 639628, at *18 (D. Idaho Feb. 16, 2017).

[8] United States v. Mex. Feed & Seed Co., 980 F.2d 478, 487 (8th Cir. 1992)  (quoting Tucker v. Paxson Mach. Co., 645 F.2d 620, 626 (8th Cir. 1981)).

This article was first published on the Cohen & Grigsby website.

About the Author

Julie counsels and represents clients in a range of environmental and litigation matters. She assists clients with day-to-day environmental compliance concerns and provides enforcement defense counseling, particularly with solid waste and groundwater issues. Her extensive background in CERCLA matters includes serving as legal counsel for clients involved in remediation initiatives at complex Superfund sites as well as litigating cases through multiple phases, including discovery, allocation negotiations, and alternative dispute resolution. Julie’s litigation practice encompasses not only environmental matters, but also insurance coverage actions and other commercial and business disputes.

Environmental Convictions & Contaminated Property: Ontario Summary for 2018

The Ontario Ministry of Environment, Conservation, and Parks (MOECP) publishes publishes an annual report on environmental penalties issued in the previous calendar year for certain land or water violations for companies subject to the Municipal Industrial Strategy for Abatement (MISA) Regulations.  Companies subject to the MISA Regulations belong to one of the nine industrial sectors found in the Effluent Monitoring and Effluent Limits (EMEL) regulations.  The summary report for 2017 was published in the Spring of 2018.

Under the MISA Regulations, environmental penalties can range from $1,000 per day for less serious violations such as failure to submit a quarterly report under the MISA Regulations  to $100,000 per day for the most serious violations, including a spill with a significant impact.

For serious offences under the Ontario Environmental Protection Act and Ontario Water Resources Act, the maximum and minimum corporate fines for each day on which the offence occurs is as follows:

  1. not less than $25,000 and not more than $6,000,000 on a first conviction;
  2. not less than $50,000 and not more than $10,000,000 on a second conviction; and
  3. not less than $100,000 and not more than $10,000,000 on each subsequent conviction.

In the past, Ontario Environment Ministry would publish a more comprehensive environmental enforcement report that covered all penalties, fines and convictions.

In a 2011 blog, Diane Saxe, Ontario’s former Environmental Commissioner and former partner at Siskinds Law Firm, wrote that  a typical year, the Ontario Environment launches about 150 to 175 prosecutions. About 75% of them are resolved by guilty pleas; about 5% are acquitted at trial; about 10% are convicted of something at trial; about 10% are withdrawn.

As the end of the calendar year approaches, the staff at Hazmat Management Magazine thought it would be useful to review some of the more significant environmental convictions related to contaminated property.  That summary can be found below.

Environmental Consultant and an Individual fined $50,000 for False RSC Incidents

In the Spring, an Ontario-based consulting firm that provides environmental, geotechnical, and hydrogeological consulting services was convicted when an employee falsified  Environment Ministry Letters of Acknowledgement to Records of Site Conditions (RSCs) for two properties.

An RSC is a statement on the environmental condition of a property and is typically a requirement by a municipality if a contaminated property is remediated and a redevelopment is proposed that involves a more sensitive land use (i.e., from industrial to residential).  The environmental consultant that performed the environmental site investigation at the site (a Phase I ESA and possibly a Phase II ESA) submits an RSC to the Environment Ministry.  The Environment Ministry issues an acknowledgement of the RSC.

The offences occurred in the Spring of 2014 and winter of 2015.  When the Consulting firm realized one of its employees had issued falsified documents related to the RSCs it immediately informed the affected owners of the related properties.  In the Fall of 2015, an owner/developer of another construction project in the Greater Toronto Area notified the ministry of concerns relating to their RSC submissions of which the consulting firm in question was involved.  At that time, the Environment Ministry commenced an audit and investigations.

The consulting firm was found guilty of one violation under the Environmental Protection Act (EPA), was fined $35,000 plus a Victim Fine Surcharge (VFS) of $8,750, and was given 30 days to pay. On the same date, former employee was found guilty of two violations under the EPA, was fined $15,000 plus a VFS of $3,750, and was given 18 months to pay.

Muskoka Cottage Owner fined $30,000 for Discharging Fuel Oil into Water Well

In the winter, a Muskoka homeowner was convicted for discharging fuel and other petroleum hydrocarbon into a water well which can impair the quality of the water. He was fined $30,000 plus a victim surcharge with 6 months to pay .

The conviction stems from an incident that occurred in the spring of 2016.  On May 16, 2016, the homeowner of a cottage on Lake of Bays poured heating fuel oil down a neighbor’s well, damaging the quality of the water in the well. The incident was referred to the Environment Ministry’s investigations and Enforcement branch, resulted in charges and one conviction through a guilty plea.

Residential Property Owner fined $3,000 for Falsely Claiming Property was Remediated

In the winter, a homeowner in Guelph was convicted of failing to apply with two provincial officers orders issued under the environmental protection act (EPA) . The homeowner was fined $3,000 plus a victim fine surcharge of $750 and was given 15 days to pay the fine .

The violation occurred in 2013 when the homeowner bought a residential property in Guelph , which earlier had been contaminated with oil fuel from a historic spill at the property . In the December of 2014, the homeowner put the residence up for sale.  The Environment Ministry subsequently received a complaint that the house was up for sale but had not been adequately remediated.

During the course of its investigations, the Environment Ministry found the previous owner had claimed the property had been remediated but discovered that no remediation had been conducted.  An Order was issued by the Environment Ministry for all documentation related to any remediation at the property to be submitted.  Despite providing an extension on a submission date, the not information was provided to the Environment Ministry.

The incident was referred to the ministry’s Investigations and Enforcement Branch, resulting in charges and the conviction against the property owner.

Fine of $30,000 for Discharging Contaminants and Illegal Operation of Waste Disposal Site

In the winter, a business located in the County of Essex and its owner was convicted of three offences under the Environmental Protection Act( EPA) and was also fined $30,000 for discharging dust that cause and was likely to cause an adverse effect, and being deposited at a property that is not allowed nor an approved waste disposal site.

A business owner in Essex County accepted 189 truckloads of  construction waste in 2014 despite the fact that property was not approved as a waste disposal site.

In 2015, the business owner was operating a farm tractor to turn soil at the site. The operation resulted in the release of plumes of dust which adversely affected nearby residents and their properties . The incident was referred to the Environment Ministry’s Investigations Branch.

 

Financing Soil Remediation: Exploring the use of financing instruments to blend public and private capital

The International Institute for Sustainable Development (IISD) recently released a report entitled Financing Soil Remediation: Exploring the use of financing instruments to blend public and private capital.

The report makes the statement that governments around the world are looking at opportunities to attract private capital participation in both land remediation and its productive use and redevelopment thereafter. The business case is intrinsically the value capture in the increase in retail price of land and related business opportunities once the remediation is complete. However, where land value capture is lower and related revenue streams remain uncertain, the case for private capital participation is much less compelling. Governments, in this case, have to fund the remediation through public budgets and thereafter seek opportunities to partner with private counter-parties to use the land as “fit for purpose.”

The IISD report presents 17 case studies on a variety of financing instruments that blend public and private capital. Each case study includes a short discussion on the extent to which each instrument could be used to finance the remediation of contaminated soil.  The case studies in thereport demonstrate a variety of financing strategies, from index-linked bonds to savings accounts and from peer-to-peer lending platforms to debt-for-nature swaps.

This report is a part of a series of outputs of a four-year project, Financing Models for Soil Remediation. The overall objective of the project is to harness the full range of green finance approaches and vehicles to manage the associated risk and fund the remediation of contaminated soils.

The series of reports focuses on the financial vehicles available to attract investment to environmental rehabilitation of degraded land and the financial reforms needed to make these vehicles a viable and desirable means of investing in land rehabilitation. The IISD draws on best practices worldwide in funding environmental rehabilitation, with a special focus on the design and use of financial mechanisms to attract private investors, share the risk and offer a clear benefit for the rehabilitated land.

Several lessons emerge from these case studies described in the report in the context of financing the remediation of contaminated land, including the following:

  1. As with all financial arrangements, the risk appetite of different investors has to match the risk profile of
    the investment. It is difficult to crowd in private and institutional investors when projects remain below
    investment grade.
  2. Money follows a good deal. When legal, technological, revenue and other risks are understood and are
    transparent, feasible ways to reduce these uncertainties can be planned and financing strategies can be
    worked upon.
  3. When there is reasonable certainty that the value of the land will increase after remediation and will
    subsequently generate stable and predictable revenues, there is a strong case for blending public and
    private financing.
  4. When, on the other hand, projects have less attractive revenue potential, governments have to step in to
    finance the remediation, or at least a larger part of it.

About the IISD

The International Institute for Sustainable Development (IISD), headquartered in Winnipeg, Manitoba, is an independent think tank championing sustainable solutions to 21st–century problems. The mission of the IISD is to promote human development and environmental sustainability. IISD focuses on research, analysis, and knowledge products that support sound policy making.

Market Report on VOC Detectors

VOC Detector Market

QY Research recently published the Global Market Study VOC Detector Market Provide Forecast Report 2018 – 2025.  The report presents a detailed analysis of the VOC Detector market which researched industry situations, market Size, growth and demands, VOC Detector market outlook, business strategies utilized, competitive analysis by VOC Detector Market Players, Deployment Models, Opportunities, Future Roadmap, Value Chain, and Major Player Profiles. The report also presents forecasts for VOC Detector investments from 2018 till 2025.

United States is the largest Manufaturer of VOC Detector Market and consumption region in the world, Europe also play important roles in global VOC Detector market while China is fastest growing region. The 126 page VOC Detector report provides tables and figures and analysis the VOC Detector market. The report gives a visual, one-stop breakdown of the leading products, submarkets and market leader’s market revenue forecast as well as analysis and prediction of the VOC Detector market to 2025.

Geographically, this report splits the global market into several key Regions, with sales (K Units), revenue (Million USD), market share and growth rate of VOC Detector for these regions, from 2013 to 2025 (forecast), covering United States, China, Europe, Japan, Southeast Asia, and India.

The report provides an analysis of the global VOC Detector market competition by top manufacturers/players, with VOC Detector sales volume, Price (USD/Unit), revenue (Million USD) and market share for each manufacturer/player.  The top players include the following: REA Systems; Ion Science; Thermo Fisher; Skyeaglee; Omega; and E Instruments.

The report provides an overview of the global market on the basis of product.  This report displays the production, revenue, price, market share and growth rate of each type, primarily split into the following types of detectors:
PID and Metal-oxide Semiconductor.   The report also breaks down the global market based on application as follows:  Environmental Site Surveying; Industrial Hygiene; and HazMat/Homeland Security.

RAE Systems Gas Detector

Environmental Industry M&A in 2018

Environmental Business International, Inc. (EBJ) recently published the 2018 Environmental Industry Mergers and Acquisitions.  The book provides an in-depth analysis of the mergers and acquisitions (M&A’s) that have occurred in the environmental industry in 2018.  Included in the publication are discussions on Stantec’s additions in the UK, Australia and New Zealand along with cultural fit in employee-ownership model at Golder.

The publication states that experts are calling 2018 as the “strongest year we have seen in this decade” with respect to M&A’s in the environment industry. According to the findings in the publication, M&A activity is at record levels and is up 20% over 2017. Some experts assert that Merger & Acquisition activity may be cresting in 2018, but many experts and deal-makers see scope for continued pace. Generally optimistic outlooks drive investment strategies of companies, private equity firms and corporate acquirers, but acquirers and sellers keep their correction contingency plans close at hand.

According the findings in the report, analysts, management consultants and investment bankers report that multiple factors are aligned to continue the strong pace of M&A and high valuations,

Exhibits in this 2018 Environmental Industry Mergers and Acquisitions edition of EBJ include:

  • Consolidation of U.S. C&E Industry 1990-2017
  • Top 10 U.S. Remediation Firms 2000-2016 (Gross Revenues in $mil)
  • Share of Top Companies in U.S. C&E Industry 2000-2017
  • Top 5 & 10 U.S. Environmental C&E Firms 1995-2017(Gross Environmental C&E Revenues in $mil)
  • A Decade of US M&A Activity in the AEC Industry
  • 2007-2018 Interstate M&A Deal Flow in AEC
  • 2018 Year-to-Date Heat Map of Regional AEC M&A Activity
  • Influence of Publicly-Traded Buyers in AEC M&A, 2007-2018
  • Influence of Private Equity in AEC M&A, 2013-2018
  • Most Prolific Buyers (2011 – YTD 2018)
  • Several revenue history and acquisition lists for profiled companies
  • Levels of Interest That Help Determine Value in AE Firms
  • U.S. M&A Activity in Environmental and Industrial Services: 2009-2018
  • M&A Activity in Environmental Services: Special Waste & Environmental Engineering & Consulting

For more information on the environmental C&E industry, visit Reports & DataPacks page.

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CHAR Announces Successful Commissioning of Biocarbon Facility

Andrew White, CEO of CHAR Technologies Ltd.

CHAR Technologies Ltd. (“CHAR”) (YES – TSXV) recently announced that it has successfully commissioned its biocarbon production facility.  CHAR creates two types of biocarbon, an activated charcoal “SulfaCHAR” and a solid biofuel (bio-coal) “CleanFyre.”  At full capacity, the facility will be capable of producing up to 5 tonnes per day of biocarbon.

“Successful commissioning is a very significant milestone for CHAR,” said Andrew White, CEO of CHAR. “We are now able to produce commercial quantities of SulfaCHAR, as well as enough CleanFyre to test as part of our project with ArcelorMittal Dofasco and Walker Environmental.”

The completion of commissioning is the next milestone in CHAR’s Sustainable Development Technology Canada (SDTC) project.  Upon acceptance of the milestone report by SDTC, the next progress payment can be processed.

CleanFyre is a carbon neutral solid biofuel, and through its implementation will allow users to significantly reduce their GHG emissions.  SulfaCHAR is a zero-waste activated charcoal, with application in the desulfurization of renewable natural gas.  Both are made from low-value materials, including anaerobic digestate and wood-based by-products.

About CHAR

CHAR Technologies Ltd. is a cleantech development and services company, specializing in biocarbon development (activated charcoal ‘SulfaCHAR’ and solid biofuel ‘CleanFyre’) and custom equipment for industrial air and water treatment, and providing services in environmental management, site investigation and remediation, engineering, and resource efficiency.

CHAR Pyrolysis Unit, pre-installation and commissioning (Photo Credit: CHAR)

Court Upholds Decision That The Ministry May Order Current And Former Owners, And Tenants To Delineate Contamination That Has Migrated Off-Site

Article by Stanley D. Berger and Albert M. Engel

Fogler, Rubinoff LLP

On September 4, 2018, Ontario’s Divisional Court released its decision in Hamilton Beach Brands Canada, Inc. v. Ministry of the Environment and Climate Change, 2018 ONSC 5010, dismissing an appeal of a September 1, 2017 decision of Ontario’s Environmental Review Tribunal (Hamilton Beach Brands Canada Inc. v. Ontario (Environment and Climate Change), 2017 CanLII 57415 (ON ERT)) in which the Tribunal upheld the Ministry’s jurisdiction to order current and former owners and tenants of a contaminated property to delineate contamination that has migrated to off-site properties. The Tribunal’s decision also found that the Ministry had jurisdiction to make an order regarding existing, ongoing and future adverse effects, that the adverse effects do not have to be related to the potential off-site migration of a contaminant, nor must the contaminant be on an orderee’s property at the time the order is made and that the order may require work on-site and off-site to address an adverse effect.

In upholding the Tribunal’s decision, the Divisional Court found that there is no geographical constraint limiting orders to the source property of the contamination and quoted the Tribunal’s observation that “contamination and adverse effects are not constrained by the boundaries of a property, either in initial discharge or because of migration”. The Divisional Court also found that the Tribunal’s interpretation of the Ministry’s order-making jurisdiction is consistent with the Brownfield regime since protection from orders is extinguished under the regime when contaminants migrate from a property that was subject to that regime.

The former appliance manufacturing plant on McFarland Drive that is the property in question in the  Hamilton Beach Brands Canada, Inc. v. Ministry of the Environment and Climate Change, 2018 ONSC 5010 (Phtoto Credit: Jason Parks/Picton Gazette)

The order provisions of s.18(2) of the Environmental Protection Act, R.S.O. 1990, c.E.19 were at issue in this case. This is the first Divisional Court decision interpreting the geographic extent of the powers set out in s.18(2). The decision confirms that the powers are expansive and should be considered by any current, former or prospective owner or tenant of a contaminated property. We will continue to monitor this case should it be appealed further.

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.

________________________

About the Authors

Mr. Berger has practiced regulatory law for 37 years. He represents nuclear operators and suppliers, waste management operators, renewable energy operators, receivers-in-bankruptcy, municipalities and First Nations. He was an Assistant Crown Attorney in Toronto for 8 years, Senior counsel and Deputy Director for Legal Services/Prosecutions at the Ministry of the Environment for 9 years and Assistant General Counsel at Ontario Power Generation Inc for 14 years.
He is the author of a quarterly loose-leaf service published by Thomson Reuters entitled the Prosecution and Defence of Environmental Offences and the editor of an annual review of environmental law.
Mr. Berger was the President of the International Nuclear Law Association (2008-2009) and the founder, and President of the Canadian Nuclear Law Organization.

Mr. Engel practice all aspects of Environmental and Renewable Energy Law. He advises clients in the development and operation of renewable energy projects, regulatory compliance and civil causes of action.He represent clients before Ontario’s Environmental Review Tribunal and all levels of court. He assist clients with defences to environmental and other regulatory prosecutions, appeals of environmental orders and civil litigation involving environmental issues including contaminated lands.

Mr. Engel has a Masters degree in Environmental Studies and is Certified by the Law Society of Upper Canada as a Specialist in Environmental Law.