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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resolved by guilty pleas; about 5% are acquitted at trial; about 10% are convicted of something at trial; about 10% are withdrawn.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.

 

Mine fined $100,000 for not Monitoring Effluent

On August 20, 2018, Lupin Mines Incorporated was ordered in the Nunavut Court of Justice to pay $100,000 after pleading guilty to a violation under the Fisheries Act related to the Metal and Diamond Mining Effluent Regulations. Of the total penalty, $80,000 will be directed to the Environmental Damages Fund.

An investigation launched by Environment and Climate Change Canada enforcement officers revealed that Lupin Mines Incorporated did not carry out an environmental effects monitoring study within the prescribed period, contrary to the requirements of the Metal and Diamond Mining Effluent Regulations. Lupin Mines Incorporated has since completed the required study.

Owners and operators of mining companies are required by law to conduct environmental effects monitoring studies that examine the potential effects of their effluent (discharge) on fish populations and aquatic invertebrates.

As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

Environment and Climate Change Canada is responsible for the administration and enforcement of the pollution prevention provisions of the Fisheries Act, which prohibit the deposit of deleterious substances into water frequented by fish. The Metal and Diamond Mining Effluent Regulations authorize the deposit of effluent, provided that conditions prescribed in the Regulations are observed.

Lupin Gold Mine, Nunavut

Environmental Fine for Violation of Canada’s Regulations related to Petroleum Products Storage

Mosquito Grizzly Bear’s Head and Lean Man First Nation and band administrator, Arnold Moosomin, were recently sentenced in the Provincial Court of Saskatchewan for failing to comply with an environmental protection compliance order issued by Enforcement Officers from Environment Canada and Climate Change (the Canadian equivalent of the U.S. EPA).

Mosquito First Nation is an Assiniboine Nation located in the Eagle Hills approximately 30 kilometres south of Battleford, Saskatchewan.  It is nearly 50,000 acres in size and has approximately 1000 members.

The Court fined the Mosquito Grizzly Bear’s Head and Lean Man First Nation $100,000 and Moosomin $5,000.  The funds will be directed to the Environmental Damages Fund.

The fine was the result failing to comply with an environmental protection compliance order following an inspection to ensure compliance with the Canadian Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations.  These regulations establish technical standards for the design and installation of storage tank systems under federal jurisdiction and include requirements for operation, maintenance, removal, reporting and record-keeping.

Environmental Officers subsequently laid charges under the Canadian Environmental Protection Act, 1999 after it was determined that the First Nation and band administrator failed to comply with all of the terms of the order. The defendants were convicted following a trial.

Pulp Mill in British Columbia fined $900K for releasing deleterious effluent

The Mackenzie Pulp Mill Corporation recently pleaded guilty, in the Provincial Court of British Columbia, to depositing a deleterious substance into water frequented by fish, in violation of the pollution-prevention provisions of the Fisheries Act.  The company was ordered to pay a penalty of $900,000, which will be directed to the federal Environmental Damages Fund.  This funding is to be used for the conservation of fish or fish habitat in the Omineca region of British Columbia. The company was also ordered to complete an independent audit of its operations to prevent future incidents of this kind.

The offence relates to incidents in July 2014 and September 2016, when effluent discharging from the Mackenzie Pulp Mill was found to be deleterious to fish. Environment and Climate Change Canada enforcement officers investigated the incidents, and their investigation revealed that the mill’s treatment system had not properly treated the effluent before discharging it, due in part to improper management of the wastewater entering the treatment system. The effluent was deposited into Williston Lake, which is frequented by fish.

As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.  The Environmental Offenders Registry contains information on convictions of corporations registered for offences committed under certain federal environmental laws.

Environmental Fine of $100,000 for Gas Bar Owner in Big River, Saskatchewan

Big River First Nation was recently sentenced to pay a fine of $100,000 in the Provincial Court of Saskatchewan for failing to comply with an environmental protection compliance order concerning the Miami Gas Bar, a company owned and operated by the Big River First Nation. An environmental protection compliance order is an order under the Canadian Environmental Protection Act, 1999, which directs various measures be taken to stop or prevent a violation of the Act or its regulations.

The conviction stems a 2014 inspection by Officers from Environment Canada and Climate Change (ECCC) to verify compliance with the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations under the Canadian Environmental Protection Act, 1999.  As a result of the investigation, the ECCC Officers issued an environmental protection compliance order. Charges were subsequently laid when the compliance order was not followed.  In court, Big River First Nation pleaded guilty to failing to comply with measures identified in the order.

The Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations aim to reduce the risk of spills and leaks of petroleum products from storage tank systems, which can contaminate soil and groundwater. The Regulations apply to storage tank systems operated by a federal department, board, agency, or Crown corporation; storage tank systems providing services to federal works or undertakings that are a port authority, airport, or railway; and storage tank systems located on federal or Aboriginal lands.

U.S. EPA Hazardous Waste Enforcement in Wisconsin

The United States Environmental Protection Agency (“U.S. EPA”) and Kerry Biofunctional Ingredients, Inc. d/b/a Kerry Bio Sciences (“Kerry”) recently entered a Consent Agreement (“CA”) addressing alleged violations of Subtitle C of the Resource Conservation and Recovery Act (“RCRA”) and its regulations implementing requirements for the management of hazardous waste. See Docket Number : RCRA-02-2017-7108.

Kerry is a subsidiary of Kerry, Inc. whose North American Headquarters is situated in Beloit, Wisconsin.

The CA provides that Kerry operates a facility in Norwich, New York (“Facility”) that has been a generator of hazardous waste.

As a result of the July 2016 inspection and Kerry’s response to the Request for Information, the Facility is alleged to have failed to:

  1. Make hazardous wastes determinations for certain waste-streams found at the Facility
  2. Keep a complete copy of each hazardous waste manifest for at least three years
  3. Meet the conditions necessary to accumulate hazardous waste without having obtained a permit or qualifying for interim status

Such alleged failures are stated to be violations of the RCRA regulations.

The CA assesses a civil penalty of $20,000.

A copy of the CA can be downloaded here.

Kerry Headquarters, Ireland

Quebec Town Fined $100,000 for Violating Canadian PCB Regulations

Earlier this year, the Town of Amos, located in northwestern Quebec, pleaded guilty in court to one charge and was fined $100,000 for violating the PCB Regulations, thereby committing an offence under the Canadian Environmental Protection Act, 1999 (CEPA).

Amos is located 110 km northeast of Rouyn-Noranda in northwestern Québec. The Town has a population of 13,000.  Its main resources are spring water, gold, and wood products, including paper.

Charges were laid against the Town of Amos after an investigation conducted by staff from Environment Canada and Climate Change (ECCC) showed that, in April 2015, the Town of Amos sold products containing PCBs in a concentration of 50 mg/kg or more, which is in violation of the PCB Regulations.

The amount of the fine will be directed to the Environmental Damages Fund (EDF) administered by Environment and Climate Change Canada.

What are PCBs?

PCBs (Polychlorinated Biphenyls) are a group of man-made organic chemicals consisting of carbon, hydrogen and chlorine atoms. The number of chlorine atoms and their location in a PCB molecule determine many of its physical and chemical properties.  Due to their non-flammability, chemical stability, high boiling point and electrical insulating properties, PCBs were used in hundreds of industrial and commercial applications including:

  • Electrical, heat transfer and hydraulic equipment
  • Plasticizers in paints, plastics and rubber products
  • Pigments, dyes and carbonless copy paper
  • Other industrial applications

Although no longer commercially produced in North America, PCBs may be present in products and materials produced before the 1979 PCB ban. Products that may contain PCBs include:

  • Transformers and capacitors
  • Electrical equipment including voltage regulators, switches, re-closers, bushings, and electromagnets
  • Oil used in motors and hydraulic systems
  • Old electrical devices or appliances containing PCB capacitors
  • Fluorescent light ballasts
  • Cable insulation
  • Thermal insulation material including fiberglass, felt, foam, and cork
  • Adhesives and tapes
  • Oil-based paint
  • Caulking
  • Plastics
  • Carbonless copy paper
  • Floor finish

The PCBs used in these products were chemical mixtures made up of a variety of individual chlorinated biphenyl components known as congeners. Most commercial PCB mixtures are known in the North America by their industrial trade names, the most common being Arochlor.

Canadian Government’s Role in the Management of PCBs?

Health Canada and Environment Canada have taken strong and effective steps under the Canadian Environmental Protection Act (CEPA) to control the use, importation, manufacture, storage and release of PCBs.

CEPA states that PCBs are toxic, and Environment Canada is working on revisions to CEPA that would further strengthen controls over all PCBs in service or in storage anywhere in Canada.

The Government has also established regulations regarding hazardous wastes and has signed a number of international agreements, such as the Canada-USAgreement on PCBs, and the Basel Convention, which are all aimed at the safe use, storage, transport and disposal of PCBs, both nationally and internationally.

In addition, Health Canada continues to monitor the amount of PCBs in food, air and water to ensure that Canadians are not exposed to levels that pose a health risk. Health Canada also tracks and assesses ongoing research about the health effects of exposures to PCBs.

Canada: $150K fine for improper storage of petroleum products

It could be a sign of a toughening of enforcement in Canada.  A company in Saskatchewan was recently fined $150,000 for improper storage of petroleum hydrocarbons under the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations, made pursuant to the Canadian Environmental Protection Act, 1999.  The company, Crop Production Services (Canada) Inc., recently plead guilty to transferring petroleum products into unidentified storage-tank systems.  Storage of petroleum products in unmarked containers is a violation of the federal regulations.

In 2016, enforcement officers from Environment Canada and Climate Change conducted an investigation of Crop Production Services (Canada) Inc.  During the course of the inspection, they discovered the petroleum product in an unmarked container.  No spillage of petroleum product had occurred.

The Court ordered the company to pay a total penalty of $150,000 to be directed to the federal Environmental Damages Fund.  As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

Crop Production Services (Canada) Inc. (CPS) is a leading provider of agricultural products and services for western Canadian growers. A subsidiary of Nutrien Ltd., CPS provides a wide range of services to the agricultural industry including agronomy Services; crop protection;  plant nutrition; precision agriculture; fuel, oil and lubricants; and storage and handling. CPS has over 220 retail locations in communities across Western Canada.

CPS offers Esso bulk fuels to the farm and commercial market across the Prairies through an agreement with Imperial Oil

The Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations aim to reduce the risk of contaminating soil and groundwater due to spills and leaks of petroleum products from storage-tank systems.  The regulations require owners and operators to identify their storage-tank systems with an identification number from Environment and Climate Change Canada. This requirement allows an inventory of storage-tank systems to be maintained in a registry that captures the type of tank, the type of piping, and the year of installation of the storage-tank system. Suppliers that deliver petroleum products and allied petroleum products (e.g., thinner for vinyl coatings) are prohibited from transferring petroleum products into any storage tank, unless the storage-tank system identification number is visible.

Mining company in B.C. fined $200,000 for Failure to Sample Effluent

Barkerville Gold Mines Ltd. (TSXV: BGM) was recently ordered to pay $200,000 after pleading guilty, in Provincial Court of British Columbia, to violations under the Canadian Fisheries Act related to the Metal Mining Effluent Regulations.

The fine was the result of routine inspections conducted by Environment and Climate Change Canada enforcement officers at the Cariboo gold mine in Central British Columbia.  During inspections, it was revealed that the company failed to complete sampling, notify authorities of having deposited effluent into fish-bearing water without authorization, and submit reports on time.  The effluent was deposited into Lowhee Creek, part of the Willow River system—an important fish-bearing watershed.  The Metal Mining Effluent Regulations authorize deposits of effluent provided that conditions stipulated in the regulations are respected.

About Barkerville Gold Mines Ltd. is focused on developing its extensive land package located in the historical Cariboo Mining District of central British Columbia. Barkerville’s mineral tenures cover 1,950 square kilometres along a strike length of 67 kilometres which includes several past producing hard rock mines of the historic Barkerville Gold Mining Camp near the town of Wells, British Columbia.

Drillers at Barkerville Gold Mines’ Cow Mountain gold project in the Cariboo mining district

Ontario Waste Disposal Site fined $105,000 for Failing to comply with a Court Order

Tony DePasquale and Copper Cliff Metals and Wrecking Corp. recently plead guilty to one offence under the Ontario Environmental Protection Act (EPA) for failing to comply with a Court Order to remove waste from a site.  The defendants were fined a total of $105,000 plus a victim fine surcharge of $26,250.

Tony DePasquale is the sole Director and Chief Executive Officer of Copper Cliff Metals and Wrecking Corp., which operated an approved waste disposal site on Twenty Rd. in the Regional Municipality of Niagara.

On April 8, 2010, the ministry issued a ministry order to both defendants ordering the removal of waste located on the site.  The Order was not complied with, which resulted in charges and convictions against both defendants.

As part of the conviction, the court issued a Section 190 Court Order against Mr. DePasquale and the Copper Cliff Metals and Wrecking Corp., which mandated the removal of waste pile # 16 from the site.  The order also required the waste be disposed of properly and that the defendants provide documentation and proof of removal, to the ministry by June 22, 2013.  The Court Order was not complied with.  The incidents were referred to the ministry’s Investigations and Enforcement Branch, resulting in charges and one conviction against each defendant.

The waste pile has now been removed.