Supreme Court of Canada denies Leave to Appeal in the latest dry cleaner Contamination Case

Written by Marc McAree, Willms & Shier Environmental Lawyers LLP

On April 11, 2019, the Supreme Court of Canada denied the dry cleaner’s application for leave to appeal from the Ontario Court of Appeal’s decision in Huang v Fraser Hillary’s Ltd. 1

Huang confirms that Ontario courts are inclined to measure and assess damages in contaminated land lawsuits based on the cost to remediate contamination and that the statutory cause of action in Ontario’s Environmental Protection Act (“EPA”), 2 s. 99(2) is alive-and-well. Huang is the latest decision in what we expect will be an increasing number of claims brought pursuant to EPA, s. 99(2).

Fraser Hillary’s Limited (“FHL”) owns a dry cleaning business in Ottawa that has operated since 1960 near two neighbouring commercial properties owned by Eddy Huang. David Hillary is the president and sole corporate director of FHL. Mr. Hillary also owns a residential property situated near the FHL property. 3

Spills of dry cleaning solvents containing tetrachloroethylene (“PCE”) and trichloroethylene (“TCE”) were known to have occurred between 1960 and 1974 at FHL’s dry cleaning business. In 1974, FHL bought new equipment and deployed new practices that the trial court and Court of Appeal held virtually eliminated any possibility of spills thereafter. 4

In 2002, Mr. Huang discovered TCE at his nearby commercial properties. He sued FHL and Mr. Hillary.5 Mr. Huang relied on five causes of action that plaintiffs typically plead in contaminated land lawsuits:

  • liability pursuant to EPA, s. 99(2)
  • nuisance
  • strict liability
  • negligence
  • trespass.

Trial Decision

At trial, the Ontario Superior Court of Justice found that

  • FHL was liable pursuant to EPA, s. 99(2) as the owner and controller of a spilled pollutant. The trial court held that EPA, s. 99(2) applies prospectively to permit compensation for spills that happened before the statutory cause of action was promulgated into law in 1985.6
  • FHL was liable in nuisance because the TCE present at Mr. Huang’s property caused an interference with Mr. Huang’s use and enjoyment of land that was both substantial and nontrivial.7
  • FHL was not liable in negligence, trespass or strict liability.
  • Mr. Hillary was not liable under any cause of action. 8

The trial court considered various clean up options in assessing and awarding damages to Mr. Huang based on the cost to remediate his commercial properties. 9

Court of Appeal Decision

FHL appealed the trial court decision to the Ontario Court of Appeal.

Mr. Huang cross-appealed specific aspects of the trial court decision including that: (i) FHL was not liable in negligence, trespass, or strict liability, and (ii) Mr. Hillary was not liable as a nearby residential property owner.

Footnote

1 Huang v Fraser Hillary’s Ltd, 2018 ONCA 527, leave to appeal to SCC refused, 38282 [Huang ONCA].

2 Environmental Protection Act, RSO 1990, c E19, s 99(2) [EPA].

3 Huang v Fraser Hillary’s Ltd, 2017 ONSC 1500 at paras 1-4 [Huang ONSC]

4 Huang ONSC at para 23; Huang ONCA at para 7.

5 The claim against Mr. Hillary was in his personal capacity as the owner of a nearby residential property at 36 Cameron Avenue, not as a corporate director and officer of FHL; Huang ONSC at para 19.

6 Huang ONSC at paras 84, 97

7 Huang ONSC at para 124

8 Huang ONSC at paras 52-55, 61, 103, 147, 169.

9 Huang ONSC at paras 185-93.

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.

This article has been republished with the permission of the author. It was first published on the Willms & Shier Environmental Lawyers LLP website and can be found here.


About the Author

Marc McAree, B.A. (Hons.), LL.B., M.E.S., is a partner at Willms & Shier Environmental Lawyers LLP and certified as an Environmental Law Specialist by the Law Society of Ontario. Marc provides advice and solutions to a wide range of clients to overcome their environmental law and litigation issues.  Marc has significant environmental law expertise in contaminated land/brownfields clean ups, transactions and litigation, and environmental compliance and approvals.  Marc also helps clients reduce and manage environmental risks and liabilities. Marc is
recognized for his excellence representing clients in environmental civil
litigation at all levels of Ontario Courts, defence of clients against
environmental regulatory prosecutions, and appearances before Ontario’s
Environmental Review Tribunal and other administrative law decision-makers on
appeals and other hearings.  Marc has
particular experience litigating soil and groundwater contaminant impacts,
nuisance and odour issues.

B.C. Court Case on the requirements of Insurance Companies to defend pollution lawsuit against client

The British Columbia Court of Appeal recently issued a decision that overturned the ruling of the Supreme Court of B.C. on the responsibility of two insurance companies to pay for environmental clean-up under their general liability coverage.

The case deals with West Van Holdings Ltd. (“West Van”) and West Van Lions Gate Cleaners Ltd. (“Lions Gate”) claiming their general liability insurance requires their insurers to defend them for any claims against them and cover any damages arising out of contaminants alleged to have migrated from property owned and used by them, to adjacent lands.

Lions Gate Dry Cleaners, 1987 (Photo Credit: William McPhee)

The B.C. Court of Appeal is the highest court in the province. It hears appeals from the B.C. Supreme Court, from the Provincial Court on some criminal matters, and reviews and appeals from some administrative boards and tribunals.

The B.C. Court of Appeal ruling means that the two insurance companies do not have to defend a Vancouver area dry cleaner or its holding company against a lawsuit filed by its neighbours alleging soil contamination.

The B.C. Court of Appeal noted that the “policies do not include coverage for liability arising before the policy periods”, as one justification for overturning the Supreme Court of B.C.’s original ruling.

In December 2017, the Supreme Court of B.C. had issued a decision which required two insurance companies to defend a pollution lawsuit against the owner of a dry cleaning business. The dry cleaner was being sued for allegedly contaminating neighbouring properties.

The two insurance companies argued that they were not responsible for paying for the environmental damages because pollution was excluded from both of their applicable general liability policies. The Supreme Court of B.C. dismissed their argument and stated, in short, that the pollution exclusion must “clearly and unambiguously” exclude coverage. Moreover, the Court stated that the pollution exclusion must apply to “all of the claims made against the insured” in order to free the carriers of their duty to defend.

In its ruling, the Supreme Court of B.C. viewed the construction of the pollution exclusion and more specifically the words “…premises owned, rented or occupied by an Insured…” as ambiguous with respect to coverage for remediation costs arising from pollutants that may have been used before the insured owned and/or operated on the premises.   Further, the Court noted that the pollution exclusion lacked clarity on whether the exclusion extends to “concurrent liability, contributory liability or retroactive liability” attaching to the insured by statute. 

Government Funding Available to assist with exports for SME Cleantech Companies

The Government of Canada recently announced that $17 million would be made available for small-to-medium enterprise (SME) echnology companies (including Cleantech) to assist in exports.

The $17 million will be used to expand the successful Canadian Technology Accelerator (CTA) program and will be distributed to eligible companies over a five year period.

About the CTA Program

The Canadian Technology Accelerator (CTA) is a program of the Canadian Global Affairs Canada’s Trade Commissioner Service. It offers high-intensity programming that helps selected high-growth, high-potential Canadian technology firms scale up by connecting them with export, investment and partnership opportunities in global innovation centres. Over the course of a four- to six-month program, CTA participants are provided with tailored support ranging from in-market working space and coaching to market validation and introductions to potential partners, clients and investors.

Since 2013, the CTA program has helped over 500 Canadian technology companies accelerate their growth by gaining a foothold in key U.S. innovation centres. Since 2013, the program has achieved notable success in Boston, New York and San Francisco. An investment of $2 million a year has been leveraged into $510 million in capital raised, $190 million in new revenue, 996 strategic partnerships and 2,125 new jobs for 489 high-growth, high-potential firms in key technology sectors, such as information and communications technology, life sciences and clean-tech.

Canadian SME Cleantech Leaders

There are many examples of SME clean tech companies in Canada. Of the recent Global Cleantech 100 companies listed by the Cleantech Group, 12 are from Canada. The Canadian companies on the Global Cleantech 100 list are as follows:

  • Axine Water Technologies – Created a new standard for treating toxic organic pollutants in industrial wastewater, solving a global problem for pharmaceutical, chemical and other manufacturing industries. Vancouver, B.C.
  • CarbonCure – Retrofits concrete industry plants with a technology that recycles waste carbon dioxide to make affordable, greener concrete products. Halifax, N.S.
  • Cooledge Lighting – Provides adaptable LED lighting solutions to help the design industry integrate light into the built environment. Richmond, B.C.
  • ecobee – Empowers people to transform their lives, homes, communities and planet through innovative technologies that are accessible and affordable. In 2007, ecobee introduced the world’s first smart Wi-Fi thermostat to help millions of people save energy and money without compromising comfort. Toronto, Ont.
  • Enbala – Provides the advanced technology needed to ensure the operational stability of the world’s power grids by harnessing the power of distributed energy. Vancouver, B.C.
  • GaN Systems – Manufactures a range of highly efficient transistors that address the needs of various industries, including renewable energy systems, data centre servers, automotive systems, industrial motors and consumer electronics. Ottawa, Ont.
  • Inventys – Commercializes a low-cost and energy efficient technology for capturing post-combustion CO₂ from various sources, such as natural gas boilers, gas turbines, and industrial facilities, such as cement plants. Burnaby, B.C.
  • Metamaterials Technologies – Develops smart materials and photonics to provide solutions in the field of optics for several industries, including aerospace and defence, healthcare, energy, education, and cleantech. Dartmouth, N.S.
  • MineSense Technologies – Improves the ore extraction and recovery process to significantly increase profitability and decrease requirements for energy, water and chemicals. Vancouver, B.C.
  • Opus One Solutions – Developed GridOS®, an intelligent data analytical platform for smart grids that delivers optimal energy planning and management to generate, distribute, store and consume energy in a distributed network, paving the way toward a distributed energy economy. Toronto, Ont.
  • Semios -Develops agricultural technology innovation involving precision agriculture, biological pest control and data management. Vancouver, B.C.
  • Terramera – Uses technology to replace synthetic chemical pesticides with high-performance, plant-based pest control products for agricultural and consumer use. Vancouver, B.C.

The cleantech global market is estimated to be worth US$1 trillion and expected to surpass the US $2.5 trillion by 2022.

Latest Funding Allocation

The additional $17 million in funding will allow the expansion of CTA programming to global innovation centres: Berlin, Delhi, London and Mexico City. This builds upon the recent expansion of the CTA to four Asian cities (Hong Kong, Taipei, Tokyo and Singapore), funded as part of Budget 2018’s commitment to strengthen Canada’s diplomatic and trade support presence in Asia. 

Who is Eligible and How to Apply

CTAs are open to innovative Canadian tech companies that can demonstrate:

  • Traction in the Marketplace: You have at least a minimum viable product (MVP), along with quantifiable evidence of maturity (revenue, investment, or number of users).
  • Product Market Fit: You can define your target audience, articulate the problem you solve, and demonstrate differentiation of your product/service.
  • Strong & Experienced Executive Management Team: You can commit to send at least one senior member (C-level or Founder) to take part in the program and have the financial resources to cover in-market costs.
  • Potential to Scale: You have a well thought out go-to-market plan for the CTA location along with KPIs to match.

Participants are chosen in a competitive process. The Trade Commissioner Service and a panel of industry experts review the applications and decide whether applicants are eligible and a good fit for a location.

If you are chosen a CTA team members will contact you. Companies must be ready to commit the time and money needed for their executives to live full time in the target location.

For more information on how to apply, visit the CTA website.

Canada’s Key Cleantech Centres

Dredging Company fined $350,000 for depositing damaging substance into Fraser River

Company fined $350,000 for depositing damaging substance in Fraser River

Fraser River Pile and Dredge (GP) Inc. recently pleaded guilty to the Fisheries Act violation in British Columbia provincial court. The court fined the company $350,000. The fine was a result of one of the company’s dredging causing the depositing a deleterious substance into water frequented by fish – the Fraser River.

The conviction stems from an incident that occurred on the Fraser River in February 2014. During that time, the company was dredging in Deas Slough in the Fraser River when its vessel punctured a submerged water main carrying chlorinated water to the City of Delta. Enforcement officers from Environment Canada and Climate Change (ECCC) investigated the incident and determined that chlorinated water was released through the pipe into the waterway.

ECCC charged the company with the Fisheries Act violation as Deas Slough is an important fish-bearing body of water and the concentration of chlorine that was released was damaging to fish.

FRPD Equipment in Operation (Source: FRPD)

Fraser River Pile & Dredge (GP) Inc. (FRPD) is Canada’s largest Marine & Infrastructure, Land Foundations and Dredging contractor.  FRPD’s fleet includes cutter suction and trailing suction hopper dredges, spud barges, cranes, dump scows, and flat scows. The company performs all types and sizes of marine & infrastructure, environmental remediation, dredging and land foundations projects.

The $350,000 collected from the company by the government will be directed to the Government of Canada’s Environmental Damages Fund. Also, the company’s name will be added to an Candian environmental offenders registry.

HAZMAT Labels Market: global industry analysis by 2028

Future Markets Inc. recently published a research report on the Hazmat Labels Market. The report, entitled Global HAZMAT Labels Market: Overview – HAZMAT Labels, provides an overview of the market and predicts the growth of the industry.

The report is a compilation of first-hand information, qualitative assessment by industry analysts, inputs from industry experts and industry participants across the value chain. The report provides in-depth analysis of parent market trends, macroeconomic indicators and governing factors along with market attractiveness as per segments. The report also maps the qualitative impact of various market factors on market segments and geographies.

Regional analysis includes – North America, Latin America, Eastern Europe, Asia Pacific excluding Japan (APEJ), Middle East & Africa (MEA), and Japan.

Report Highlights include a detailed overview of the following:

  • market, changing market dynamics in the industry;
  • In-depth market segmentation;
  • Historical, current, and projected market size regarding volume and value;
  • Recent industry trends and developments;
  • Competitive landscape;
  • Strategies for key players and products offered’
  • Potential and niche segments; and
  • Geographical regions exhibiting promising growth

Hazmat Labels – Requirements

Hazmat labels must have excellent durability and cannot be impaired by other labels, markings & attachments. HAZMAT labels are categorized into nine classes for different purposes such as explosives, flammable gases, flammable liquids, inhalation hazards, organic peroxides etc. HAZMAT Labels for each class have a specific size & color. Most of the HAZMAT labels have contrasting background & a dotted line border. HAZMAT labels have text & symbols either in white or black.

It is important to choose the correct HAZMAT labels for shipments, as labelling a material incorrectly can result in costly shipping delays, injuries & fines. HAZMAT labels must be printed or attached to any one side of product offered for transport. It is mandatory for HAZMAT labels to be attached alongside UN numbers.

Transport Canada and the US Department of Transportation (DOT) has developed certain specifications for labels, markings and placards that must be prominently displayed on each package or container, including transport vehicles in order to safeguard health, safety, and property. The global market of HAZMAT labels is anticipated to grow rapidly during the forecast period, due to growing demand from chemical, pharmaceutical and various other end use industries.

Stringent labeling regulations by governments regarding the transportation of hazardous material accelerates market growth of HAZMAT labels, globally. Rising popularity of interactive packaging where end users can directly track the packaging using HAZMAT labels with technologies such as
radio-frequency identification (RFID) is considered a new opportunity for growth of the HAZMAT labels market.

Global HAZMAT Labels Market: Segmentation

On the basis of material, global HAZMAT labels market has been segmented as: Paper, Plastic ( Polyolefin, Vinyl, Others ). On the basis of product type, global HAZMAT labels market has been segmented as: DOT HAZMAT labels and U.S. EPA HAZMAT labels. On the basis of end use, global HAZMAT labels market has been segmented as: Pharmaceutical, Electrical & Electronics, Chemical and Petrochemicals, and Agriculture & Allied Industries.

Geographic Market

The global HAZMAT labels market has been segmented based on the region like North America, Latin America, Western Europe, Eastern Europe, MEA, APEJ, and Japan. Asia Pacific and MEA. U.S. has strong market in HAZMAT labels accounting for highest refineries & chemical producing nation in the world. The U.S. accounts for the largest share in HAZMAT labels market, owing to a large petrochemical industry. MEA region and other Asia Pacific countries such as China, India etc. are expected to witness moderate growth in the HAZMAT labels market, during the forecast period.

Key Players

Some of the key players in the HAZMAT labels market are as follows: Emedco Inc., J.Keller & Associates Inc., Brimar Industries, Inc., Air Sea Containers, Inc., National Marker Company, Labelmaster Services Inc., BASCO, Inc., LPS Industries, LLC.;

Many local and unrecognized players are expected to contribute to the global HAZMAT labels market during forecast period.

Key Developments

Some of the key developments in the HAZMAT labels market are as follows:

  • HSE Inc. has introduced HAZMAT labels with pictograms alert in order to describe presence of a hazardous chemical.
  • In February 2018, Labelmaster Services Inc. announced that it has been named the exclusive label manufacturer and distributor for CHEMTREC.

Canada: Minimum Relief From Minimum Fines Ontario (Environment, Conservation And Parks) v. Henry Of Pelham Inc.

Article by Peter Brady and Leah Whitworth, McCarthy Tétrault LLP

In the recent decision of Ontario (Environment, Conservation and Parks) v. Henry of Pelham Inc., the Ontario Court of Appeal (“ONCA“) reversed the decision of the Ontario Court of Justice (“ONCJ“) to relieve Henry of Pelham Inc. (“HPI“) of the mandatory minimum fine for a first-time water pollution offence under the Ontario Water Resources Act  (“OWRA“).1 

On November 7, 2014, a St. Catherines resident reported to the Ministry of Environment and Climate Change (the “Ministry“) that a pond on his property had turned black. Upon immediate investigation, the Ministry confirmed the discolouration and detected an organic odour stemming from the pond. As a creek leading to the subject pond runs through a vineyard owned by HPI, the Ministry met with HPI personnel to discuss the incident. HPI indicated it was possible that cattle manure and grape pomace spread on their land, but not yet incorporated into the soil, had entered the creek through a tile drain.2

Aerial View of the Henry of Pelham Vinyard (Photo Credit: HPI)

HPI was charged and pled guilty to an offence under s. 30(1) of the OWRA, which specifically prohibits discharging a material into any water that may impair its quality or the quality of any other water. The colour and odour of the subject pond met the test of “water deemed to be impaired” under s. 1(3)(c) of the OWRA, which occurs when a material or its derivative enters water, directly or indirectly, and causes or may cause a degradation in the appearance, taste or odour of the water.3

While offences under s. 30(1) are subject to a minimum fine of $25,000, on the invitation of HPI, the trial judge relied on s. 59(2) of the Provincial Offences Act (“POA“) to impose a fine of only $600. Section 59(2) provides courts with discretionary authority to impose a fine less than a declared minimum, if the imposition of such minimum fine would be unduly oppressive or otherwise contrary to the interests of justice.4

On appeal of sentence by the Crown, HPI’s fine was increased to $5,000. While the ONCJ found that the trial judge erred in finding certain circumstances as mitigating (namely, the Crown’s decision to prosecute under Part III of the OWRA (which prescribes harsher penalties than Part I) and HPI’s lack of prior convictions), HPI was once again granted relief from the minimum fine under s. 59(2) of the POA. The ONCJ determined the $25,000 fine to be “patently unfair”, given the low severity of the incident, the Crown’s weak case and HPI’s guilty plea. The ONCJ also considered HPI’s lack of prior convictions, not as a mitigating factor but rather a circumstance that brought this offence into the “exceptional” category whereby relief from the minimum fine was warranted.5

Allowing the Crown’s second sentence appeal, the ONCA varied the sentence and imposed the minimum fine of $25,000. The ONCA determined the ONCJ inappropriately cited HPI’s guilty plea on the Crown’s weak case as a mitigating factor and undermined the purpose of the OWRA, as the circumstances of HPI’s offence did not meet the threshold of “exceptional” that is necessary to warrant a departure from the minimum fine.

The ONCA noted that while the terms “unduly oppressive” and “in the interests of justice”, in s.59(2) of the POA, do not have a settled core meaning, they must be understood in the context of the Legislature’s decision to promote deterrence in the public welfare sphere through the imposition of minimum fines. The ONCA held that discretion to provide relief from a minimum fine may only be exercised by courts in truly exceptional circumstances, as the exercise of such discretion too readily would undermine the deterrence-based purpose of public welfare legislation. As a fine will generally only meet the “unduly oppressive” threshold when it imposes personal financial hardship, relief under this prong will normally be limited to individuals. Corporations will thus be limited to relief under the “otherwise not in the interests of justice” prong. While “interests of justice” allows for broader considerations, the ONCJ cautioned that these concerns must always be balanced against the interests of the community in imposing the minimum fine. Unless the scale tips in favour of the party seeking relief, the minimum fine must be imposed.6

The ONCA was careful to note that under both prongs, discretion must always be exercised within the constraints of the statutory scheme and never arbitrarily. Judges do not have power to provide relief from a minimum fine that is simply “unfair”, as unfairness is not a “freestanding test” that triggers relief under s. 59(2) of the POA.7

While the facts of the case stem from the s. 30(1) offence under the OWRA, the ONCA decision provides commentary on minimum fines in the regulatory context generally (e.g. Environmental Protection Act (“EPA“), Liquor Licence Act, etc.). 

In supporting a very strict application of the use of s. 59(2) to relieve against a minimum penalty, the ONCA provides the justification that the minimum penalty regimes (e.g. s.109 of the OWRA, but see also s.187(4) of the EPA) apply to the “more serious offences”. While it is correct that minimum penalties are triggered for some serious offences, there are several categories of offences that also trigger harsh minimum penalties in factual circumstances that are objectively environmentally trivial.  Consider, for example, a slight exceedance of a numerical limit in an Environmental Compliance approval where there is no impact in any way on the natural environment. Such an offence would trigger the minimum penalty sections.

While the ONCA is correct to be vigilant of situations where judges may reverse the intention of the Legislature, care should be taken not to limit judicial discretion to such a degree that relief from minimum penalties is effectively unavailable.  Section 59(2) of the POA was equally enacted by the legislature with a purpose in mind.  Trial judges and justices are best suited, having heard the evidence of witnesses, to assess the “interests of justice” and yes, fairness.

Footnote

1 2018 ONCA 999 (“Henry of Pelham“); R.S.O. 1990, c. O.40.

2 Henry of Pelham at paras 6-7.

3 Ibid at paras 9-10.

4 R.S.O. 1990, c. P.33; Ibid at paras 11-13.

5 Ibid at paras 19-22.

6 Ibid at paras 52-57.

7 Ibid at paras 61-62.

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.

This articles was republished with the permission of the authors. It was first published on the McCarthy Tétrault LLP website.

______________________________________

About the Authors

Peter Brady is a partner in the McCarthy Tétrault LLP Litigation and Mining Groups and co-head of the firm’s National Environmental, Regulatory & Aboriginal Group. He brings vast experience in Environmental law, extractive industry projects, occupational health and safety law, and anti-corruption compliance to McCarthy Tétrault. Peter advises and represents clients in all legal aspects of regulatory litigation, with particular emphasis in the areas of environmental law, occupational health & safety law and mining law.

Leah Whitworth is an associate in the McCarthy Tétrault LLP Business Law Group in Vancouver. She maintains a general corporate and commercial practice, which includes mergers and acquisitions, secured lending, private equity and investments. Leah represents clients in various industries, including financial services, infrastructure and technology. She has experience advising clients on a variety of corporate transactions, including asset and share transactions, private placements and bond offerings.

Canadian Federal Government Proposing New Regulations on Cross-border movement of Hazardous Waste

Environment Canada and Climate Change (ECCC), which is the Canadian equivalent of the U.S. Environmental Protection Agency, recently released draft regulations to control the cross-border movement of hazardous waste and hazardous recyclable material. The regulations, if eventually promulgated, would repeal and replace the Export and Import Regulations, the Interprovincial Movement Regulations, and the PCB Waste Export Regulations. Although the proposed Regulations would maintain the core permitting and movement tracking requirements of the former regulations, the regulatory provisions would be amended to ensure greater clarity and consistency of the regulatory requirements.

Electronic Tracking System

The proposed Regulations would provide flexibility for the electronic movement tracking system by no longer prescribing the specific form required for tracking shipments of hazardous waste and hazardous recyclable material. Instead, the proposed Regulations would require specific information to be included in a movement document (that can be generated electronically) and would allow movement document information to be passed on to different parties in parallel to facilitate the tracking rather than prescribing the handover of copies from one party to another.

Furthermore, given that movement documents would be able to be managed electronically, the proposed Regulations would no longer require that the movement document and permit physically accompany the shipment. The proposed Regulations would instead require parties to immediately produce the movement document and the permit upon request. Similar simplifications would be included in the provisions related to the movement document for interprovincial movements of hazardous waste and hazardous recyclable material.

The proposed Regulations would clarify the responsibility of a receiving (importing) facility to pass on information regarding the origin of the hazardous waste and hazardous recyclable material being transferred to a subsequent authorized facility for final disposal or recycling. As the safety of everyone is important and so is protecting the environment, it would make sense to find a contact for consultation if you need help with your company’s regulatory needs.
Clarifications would also be made to the provisions for the return and rerouting of shipments to better align those requirements with current practice and ensure that confirmation of disposal from the alternative facility is also required in order to properly complete the tracking of those shipments.

Definitions of hazardous waste and hazardous recyclable material

With respect to interprovincial movements, under the proposed regulations, the definitions of hazardous waste and hazardous recyclable material would be aligned with those of international movements. In addition, proposed changes to those definitions would ensure a more consistent application of regulatory provisions for all types of transboundary movements and would better align definitions with other jurisdictions and international agreements. Some of these proposed changes are listed below.

Toxicity characteristic leaching procedure

The proposed Regulations would reference the toxicity characteristic leaching procedure (TCLP), in its entirety. This procedure is a standard test method used to evaluate the mobility of a number of contaminants that may be found in waste and recyclable material and, therefore, their potential for release. While making reference to the TCLP, the Export and Import Regulations exclude a step requiring that the size of particles in a sample be reduced to fit into the testing apparatus. In order to ensure that the method is used consistently, hazardous waste and hazardous recyclable material undergoing testing would need to be shredded to meet the TCLP’s specific particle size requirement.

Electrical and electronic equipment

Electrical and electronic equipment (EEE) is not currently listed as hazardous under the Export and Import Regulations and must meet other criteria to fall under the definitions of hazardous waste or hazardous recyclable material, which can be difficult to ascertain. The proposed Regulations would clearly designate “circuit boards and display devices and any equipment that contains them” as hazardous waste or hazardous recyclable material to be controlled when destined for specific disposal or recycling operations. The proposed Regulations would maintain the exclusion currently under the Export and Import Regulations for this type of hazardous waste and hazardous recyclable material moving within OECD countries (including moving between provinces and territories in Canada).

Mercury

The proposed Regulations would remove the small quantity exclusion for hazardous waste and hazardous recyclable material containing mercury. Any waste or material containing any amount of mercury that meets the definitions of hazardous waste or hazardous recyclable material would be subject to the regulatory provisions for both international and interprovincial movements.

Batteries

Batteries are not currently listed as hazardous under the Export and Import Regulations and must meet other criteria to fall under the definitions of hazardous waste or hazardous recyclable material. Some types of batteries are clearly covered by the definitions; however, for some other types it is not clear. The proposed Regulations would clarify that all types of batteries (i.e. rechargeable and non-rechargeable) being shipped internationally or interprovincially for disposal or recycling are included in the definitions of hazardous waste and hazardous recyclable material.

Terrapure Battery Recycling Facility

Waste and recyclable material generated on ships

The proposed Regulations would add a new exclusion to clarify that waste or recyclable material generated from the normal operations of a ship is not captured by the definitions of hazardous waste and hazardous recyclable material. This exclusion would further harmonize the proposed Regulations with the Basel Convention (which excludes this waste) and the Canada Shipping Act, 2001 where this waste is already covered.

Residual quantities

The proposed Regulations would add a new exclusion for waste or recyclable material that is to be transported in a container after the contents of that container have been removed to the maximum extent feasible and before the container is either refilled or cleaned of its residual content. This exclusion would clarify that such waste or recyclable material is not captured by the definitions of hazardous waste and hazardous recyclable material.

Recycling operation R14

Over the years, ECCC has received numerous questions regarding recycling operation R14 found in Schedule 2 of the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations. Section 2 R14 reads as follows : “Recovery or regeneration of a substance or use or re-use of a recyclable material, other than by any of operations R1 to R10”. This recycling operation is not included in the Basel Convention or the OECD Decision. ECCC is proposing to delete this part of operation R14 to remove uncertainty about its application. This change may result in some recyclable material no longer being captured and defined as hazardous. For example, a used material that is to be used directly in another process that is not listed as a recycling operation would no longer be captured.
This change would further align regulatory provisions with international guidelines under the Basel Convention.

Exports, Imports and Transits of Hazardous Waste and Hazardous Recyclable Material 2003-2012

Proposed changes regarding waste containing PCBs

The regulatory provisions for the export of waste containing PCBs would be streamlined and integrated into those for hazardous waste and hazardous recyclable material. This would include removing the partial prohibition on exports of waste containing PCBs in a concentration equal to or greater than 50 mg/kg to allow controlled exports beyond the United States. Therefore, waste and recyclable material containing PCBs in a concentration equal to or greater than 50 mg/kg would be able to be exported provided a permit is obtained and all of the conditions of the proposed Regulations are met.

Proposed changes to improve the permitting process

The proposed Regulations would no longer require the name of the insurance company and the policy number for the exporter, the importer and carriers with the notification (i.e. permit application). In addition, copies of the contracts would no longer need to be provided with the notification. In both cases, the applicant would be required to provide a statement to the effect that valid insurance policies and contracts are in place and to keep proof of insurance coverage and copies of contracts at their place of business in Canada for five years.

The proposed Regulations would require a new notification for any changes in information, other than correcting clerical errors, on a permit.

The proposed Regulations would increase the maximum duration of a permit from 12 months to 3 years, consistent with international agreements, for the movement of hazardous recyclable material directed to pre-consented facilities within OECD countries.

The proposed Regulations would set out conditions under which a permit may be refused, suspended or revoked.

Impacts on Business – Costs and Operations

According to the consultation documents prepared by ECCC, the proposed Regulations, if promulgated, would affect 295 companies, 281 of which would be considered small businesses. For these small businesses, the proposed Regulations are expected to result in incremental compliance and administrative costs of $296,000 in average annualized costs, that is, $1,070 per small business.

If the proposed Regulations are implemented, it would result in an clarifications to the definitions of hazardous waste and would ensure a more consistent application of regulatory provisions. In addition, the proposed Regulations would help minimize environmental impacts outside Canada by ensuring that exported hazardous waste and hazardous recyclable material reach the intended disposal or recycling facilities. For any company that performs hazardous operations, the idea to try and find flexible safety doors is one that could benefit industries such as transportation and the medical field, as this helps increase safety in this process and acts as a security barrier between any hazards. The present value of compliance and administrative costs of the proposed Regulations would be $2.5 million in 2017 Canadian dollars, discounted at 3% to 2018 over a 10-year period between 2021 and 2030.

The proposed Regulations would impose incremental administrative costs on industry attributable to the completion of additional movement documents for interprovincial movements of hazardous waste and hazardous recyclable material. Provincial and territorial authorities that are using a tracking system would achieve small savings if they decided not to request movement document information. The present value of administrative costs of the proposed Regulations are expected to be $460,000 in 2017 Canadian dollars, discounted at 3% to 2018, over a 10-year period between 2021 and 2030.

Public Consultation

Public comments to the proposed Regulations are being accepted by ECCC until up to mid-February. Any person may file with the Minister of the Environment comments with respect to the proposed Regulations or a notice of objection requesting that a board of review be established under section 333 of the Canadian Environmental Protection Act, 1999 and stating the reasons for the objection. All comments and notices must cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent by mail to Nathalie Perron, Director, Waste Reduction and Management Division, Environmental Protection Branch, Department of the Environment, 351 Saint-Joseph Blvd., Gatineau, Quebec K1A 0H3 (fax: 819-938-4553; email: [email protected]).

Proposed Changes to Ontario’s Toxics Reduction Program

The Ontario Ministry of the Environment, Conservation Parks (MOECP) recently issued a proposal that will change the regulation (O. Reg. 455/09) under the Toxics Reduction Act , 2009. Under the proposed regulatory amendments, the following changes would be implemented:

  • facilities with existing toxics reduction plans would no longer be required to conduct reviews of those plans;
  • certain facilities would be exempt from all future planning and reporting obligations for certain substances; and
  • facilities with existing plans would still be obligated to maintain annual reporting requirements.

The proposed exemptions would apply to the following facilities:

  • Facilities that have never planned or reported under the program, but now meet the reporting threshold for one or more toxic substances; or
  • Facilities that have been out of the program for three or more years for a toxic substance, but are coming back into the program because they meet a reporting threshold again; or
  • Facilities that are currently planning and reporting under the program, and now meet the reporting thresholds for a new toxic substance at the facility.

With respect to substances, the proposed exemptions would apply to the following obligations:

  • Creating a toxic reduction plan;
  • Tracking and quantifying toxic substances;
  • Annual Reporting on planned reductions; and
  • Reviewing the toxic reduction plan.

The rationale for the proposed changes to the regulation is that it overlaps with federal reporting requirements. The Ontario Toxics Reduction Program requires industry to report publicly on their use of toxic substances, and identify options to reduce those substances through toxic reduction plans. The Canadian federal Chemicals Management Plan requires industry to reduce the use and/or release of certain toxic substances. The federal approach is more comprehensive than the existing provincial program.

Another rationale for amending the regulation is that the MOECP claims that the Toxics Reduction Program has not achieved meaningful reductions. Preliminary results compiled by the MOECP indicate an overall reduction of 0.04% of substances used, created and released for all regulated facilities.

A costing analysis was carried out by the MOECP in conjunction with the Ministry of Economic Development, Job Creation and Trade, and it was found that the annual average net savings of this proposal will far exceed the annual average administrative costs.

The MOECP cost analysis estimated that the regulatory proposal will cost current facilities an annual average administrative cost of $818,000 to learn about the changes to the regulations and to continue reporting on existing toxics substances until 2021. These costs are offset by the total annual average administrative net savings of approximately $4 million for all facilities to stop planning and for the program to end in 2021 (when the federal government has completed its chemical assessments and taken action on many toxic substances). All cost analysis was calculated as Average Annual Present Value costs discounted at 2.5% over 10 years.

Toxics Reduction Program Map

The Ontario government maintains a website that shows the locations of facilities subject to the Toxics Reduction Act, 2009, the number of facilities with plans to reduce toxics use, and information on the number of toxics reported. Users of the website can search for for and access information from Ontario facilities that use, create, release, dispose and recycle toxic substances. They can also learn more about these substances and how facilities are taking action to reduce their creation and use to protect the environment and human health. Finally, users of the website can search by location, facility, or public health unit and use the advanced search filters such as year, sector or substance to improve your search results.

Public Comment Period Ends January 20th

The MOECP is accepting public comments to the proposal until January 20th, 2019. Comments can be submitted online or to Michael Friesen of the MOECP (416-314-0131).

Clean-up of Potential CFL Stadium Site for Halifax Schooners

Shannon Park is located in Dartmouth, Nova Scotia, across the bay from Halifax. It is the the site of a former military housing complex. Environmental studies show that the site is contaminated with approximately 24,000 tonnes of soil containing arsenic and hydrocarbons.

The site has been empty since 2003. In 2014, it was purchased by Canada Lands Company, a federal crown corporation. In 2017, all buildings on the site were demolished.

In November 2018, the federal government issued tender documents for remediation of the site with the goal of it being cleaned up by the spring of 2019.

In December, it was announced that Dexter Construction Company Ltd. was recently awarded a contract to excavate, transport, and dispose of the contaminated soil from the Shannon Park site. They are also required to backfill the excavated area with clean fill as part of the contract. The value of contract is $900,933.

Dexter Construction, located in nearby Bedford, is the largest civil contractor in Nova Scotia with over 40 years of experience in infrastructure, mining, and the environment. Dexter Construction Company Limited is a subsidiary of Municipal Enterprises Limited and is the construction arm of the Municipal Group of Companies.

Previous environmental projects that Dexter Construction has been involved with include the Halifax Regional Municipality landfill development and the Halifax Harbour sewage treatment system construction.

With respect to the site being the home to a new stadium for the Halifax Schooners of the Canadian Football League, there is much to be done including the football team purchasing the land, raising $200 million to build the stadium, and getting approval for construction.

Plan for Football Stadium at Shannon Park, Dartmouth

Englobe and DST Join Forces

Englobe Corp. (“Englobe”), a Canadian-based company specializing in Soils, Material and Environmental Engineering, with an established network of more than 55 offices and 30 laboratories across Canada, recently acquired DST Group Inc. (“DST”). DST is a consulting engineering firm founded over 60 years ago with more than 165 employees and nine offices across Ontario and Western Canada. By joining forces, Englobe and DST increase their footprints with 14 offices and 350 staff in Ontario and nearly 160 staff across six offices in Western Canada.

Both companies will be well positioned to offer complementary services and expertise to each other’s clients in both geographical areas, including municipalities, provincial and federal governments, and private sector clients.

“DST shares the same important values as Englobe – focusing on our employees, offering innovative solutions to our clients and emphasizing high-quality project management. We are very happy to have found a partner in Englobe with whom we can build upon our mutual strengths and provide exciting new opportunities to both employees and clients. Our enhanced service offering in the regions will benefit clients nationwide,” says Maurice Graveline, former CEO of DST and new Vice President Operations Ontario at Englobe.

Stephen Montminy, Englobe Co-President, says: “We are extremely pleased to welcome DST to the Englobe family. Its well-established reputation will contribute to consolidating our presence in Ontario and Western Canada and I look forward to seeing the beneficial impacts as we grow together. This is an exciting continuation of our pan-Canadian growth path and creates many new jobs and business opportunities.”

In November, Englobe Corp eacquired McIntosh Lalani Engineering Ltd, a Calgary-based consulting engineering business specializing in geotechnical engineering and materials testing services.  McIntosh Lalani, established in 1997, will continue to operate under its existing name.

Englobe is backed by ONCAP, the mid-market investment arm of Canadian private equity firm Onex Corp. ONCAP invested in 2006 and later partnered in Englobe’s acquisitions and go-private deal in 2011.

Englobe Soil Treatment Facility

About Englobe Corp. and DST, a division of Englobe Corp.

Englobe offers a full range of services and solutions in soils, material and environmental engineering ranging from project design and environmental impact surveys, to technical know-how and consulting to, ultimately, regenerating the earth. The firm provides integrated, sustainable and innovative solutions designed to exceed the expectations of its clients, in both private and public sectors, who are looking for reliable technical expertise, know-how and capabilities customized to each of their projects. Englobe is proud to leverage more than 50 years of achievements in Canada, France and UK to go beyond expertise by empowering its dedicated people to share their work and passion for the benefit of our partners, communities and the environment. englobecorp.com

DST Group Inc. is a consulting engineering firm specializing in Environmental Engineering/Science, Hazardous Materials Consulting, Geotechnical Engineering, Construction Materials Testing, and collectively, Facilities Blasting/Demolition Engineering/Acoustics & Vibration Monitoring. The firm provides services in Ontario and Western Canada. DST was established in 1956 and is an employee-owned firm. dstgroup.com