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Town in Newfoundland & Labrador fined $50,000 for illegal discharges into river

The Town of Baie Verte recently pleaded guilty to two offences under the Canadian Fisheries Act in the Provincial Court of Newfoundland and Labrador in Grand Falls-Windsor, and was ordered to pay a total fine of $50,000.

The offences relate to the discharge of water containing elevated levels of chlorine from the town’s potable-water system into the Baie Verte River. The first offence relates to the release of a deleterious substance into water frequented by fish; the second, to a failure to comply with a Fisheries Act direction that ordered the town to take action to remedy the situation or prevent future occurrences.

In August 2017, following a report that chlorinated water was being discharged from the town’s potable-water system into the Baie Verte River, Environment and Climate Change Canada enforcement officers conducted an onsite inspection and took field measurements, which confirmed that the chlorinated water was deposited into the river. On September 5, 2017, officers collected water samples for laboratory analysis. The analysis confirmed that the chlorinated water was a deleterious substance, as defined by the Fisheries Act. Consequently, enforcement officers initiated a formal investigation.

In September 2017, officers issued a Fisheries Act direction, which required the Town of Baie Verte to take all reasonable measures to prevent the deposit or to counteract, mitigate, or remedy any adverse effects that result from the deposit of the deleterious substance into the Baie Verte River. The town was also required to provide a written report documenting the measures taken to comply with the direction.

Fisheries Act direction is a compliance tool that may be issued by Environment and Climate Change Canada’s Enforcement Branch, when there is a deposit of a deleterious substance into water frequented by fish or when there is a serious and imminent danger of such an incident and immediate action is necessary. For example, a direction may be issued to compel a person who has the charge, management, or control of either a deleterious substance or an activity resulting in a deposit or the danger of a deposit to take remedial or preventative action.

Between November 8, 2017, and May 23, 2018, enforcement officers conducted field measurements and collected additional water samples for analysis. Each time, the chlorine concentration detected in the samples was in the range of 120 to 6000 times higher than the recommended limits under the guidelines established by the Canadian Council of Ministers of the Environment.

The Town of Baie Verte failed to comply with the direction and was consequently charged with committing an offence under paragraph 40(3)(g) of the Fisheries Act. In addition, the town was charged for contravening subsection 36(3) by depositing a deleterious substance into the Baie Verte River.

As a result of this conviction, the Town of Baie Verte will be added to the Environmental Offenders Registry.

Although chlorine is frequently used in wastewater treatment and drinking-water systems, high concentrations of chlorine and chlorine residuals can be deleterious to fish. The Canadian Council of Ministers of the Environment’s Water Quality Guidelines for the Protection of Aquatic Life establishes 0.5 µg/L as the recommended limit for chlorine.

Montréal company fined $260,000 for violations of Canada’s PCB Regulations

On September 1, 4422236 Canada Inc. was fined $260,000 after pleading guilty to two counts of violating the PCB Regulations and the Canadian Environmental Protection Act, 1999.

An investigation conducted by Environment and Climate Change Canada (ECCC) enforcement officers revealed that 4422236 Canada Inc., owner of the Baltex Building (in Montréal), was using a transformer containing polychlorinated biphenyls (PCBs) at a concentration greater than 500 ppm, in September 2018. The investigation also found that, as of June 2019, the company had not complied with the environmental protection compliance order issued by an enforcement officer in November 2018, requiring it to dispose of the transformer.

PCBs have been widely used for decades, particularly as refrigerants and lubricants for certain types of electrical devices like transformers and capacitors. PCBs are toxic, and measures under the Canadian Environmental Protection Act, 1999 have been taken to control their use, import, manufacture, storage, and release into the environment.

 

Quebec mining company fined $400,000 for environmental violations

Seleine Mines was recently fined a total of $400,000 in Quebec court after pleading guilty to four counts of violating subsection 125(1) of the Canadian Environmental Protection Act, 1999 (CEPA, 1999).  Under subsection 125(1) of CEPA, 1999, disposal of waste at sea is prohibited without a permit.

The charges and conviction stem from an investigation by Environment and Climate Change Canada (ECCC) enforcement officers revealed that the company had disposed of dredged material on four occasions between August 10 and 14, 2014, outside of the disposal area authorized by the disposal at sea permit issued by Environment and Climate Change Canada (ECCC).

Disposal at sea is prohibited unless a permit is issued by ECCC’s Disposal at Sea Program. Only a short list of non-hazardous wastes can be considered for disposal. A permit’s conditions on quantities of waste, disposal sites, and special precautionary measures are designed to ensure that the disposal is the most practical and environment-friendly option.

U.S. EPA and State of Nebraska reach settlement over alleged environmental violations at hazardous waste incinerator

The United States Environmental Protection Agency (U.S. EPA) and the State of Nebraska recently announced a settlement with the owners of the Kimball, Nebraska hazardous waste incinerator over  alleged violations of the Resource Conservation and Recovery Act (RCRA), Clean Air Act, and Emergency Planning and Community Right-to-Know Act.

The alleged violations included failure to manage and contain hazardous wastes; failure to comply with air emission limits; failure to comply with chemical accident prevention safety requirements; and failure to timely report use of certain toxic chemicals. Under the terms of the settlement, the owner agreed to pay a $790,000 civil penalty and will improve facility practices to protect facility workers and the surrounding community from potentially harmful releases of pollutants.

The Kimball hazardous waste incinerator serves the entire United States as a storage and treatment facility for a variety of industrial waste utilizing a 45,000 ton-per-year fluidized bed incinerator. The state-of-the-art thermal oxidation unit (TOU) is capable of maximum destruction efficiencies of hazardous waste and is able to handle an extremely wide variety of feeds. Delisted ash from the TOU will be placed in an on-site monofill built to RCRA Subtitle C standards.

According to the U.S. Environmental Protection Agency (EPA) and the Nebraska Department of Environment and Energy (NDEE), the Kimball facility has been subject to previous enforcement actions, including penalty assessments, in 1997, 2004 and 2010.

According to EPA and NDEE, improper management of wastes incinerated at the facility led to unsafe conditions that could result in employee injury and/or releases of harmful air pollution outside the facility. For example, the agencies allege that the owner failed to address multiple fire incidents resulting from the company’s mixing of incompatible wastes.

Terms of the settlement include upgraded plans to classify, manage and contain the wastes incinerated at the facility; an updated fire prevention and response program; and the performance of an environmental audit at the facility to identify and address any continuing noncompliance.

Department of National Defence fined $175,000 under Canadian Environmental Protection Act, 1999

On June 22, 2020, the Canadian Department of National Defence pleaded guilty to one charge of contravening the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations. The Department was sentenced in the Provincial Court of Alberta in St. Paul and fined $175,000 for committing an offence under the Canadian Environmental Protection Act, 1999. The fine will be directed to the Government of Canada’s Environmental Damages Fund, where it will be used to advance environmental and conservation projects often in the same community in which the offence was committed.

In addition to the fine, the Court ordered the Department of National Defence to complete a third-party environmental audit of the Canadian Forces Base Cold Lake and the Cold Lake Air Weapons Range, including a review of the Department’s environmental-management systems to ensure compliance with environmental legislation.

The Department of National Defence Cold Lake Air Base is the busiest fighter base in Canada. It provides general purpose, multi-role, combat capable forces in support of domestic and international roles of Canada’s Air Force.

An investigation by Environment and Climate Change Canada enforcement officers revealed that the Department of National Defence operated a storage tank system for which an identification number had not been issued. To ensure compliance and reduce the risk of releases of petroleum products into the environment, the Regulations require the owner or operator to identify their storage tank system and obtain an identification number for their system from the Minister of the Environment.

The purpose of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations is to reduce the risk of contaminating soil and groundwater due to spills and leaks of petroleum products from storage tank systems.
The Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations establish requirements for systems under federal jurisdiction.

Welland Canal Terminal Operator fined $50,000 for Environmental Protection Act Violation

Port Weller Marine Terminal Inc., located in Port Colborne, Ontario was recently convicted of one violation under the Ontario Environmental Protection Act and was fined $50,000 plus a victim surcharge of $12,500 and was given six months to pay the fine.  The conviction relates to the discharge of cement dust that migrated off-site affecting local residential properties.

The conviction relates to activities that occurred  on or about July 28, 2016 and ending on or about August 3, 2016.  On July 28, 2016, the Ontario Environment Ministry was notified that clinker dust had migrated off the terminal site and an investigation indicated that despite Port Weller Marine’s efforts to contain the dust, a quantity was carried off-site and fell onto residential properties in the area. The company was unaware of the discharge at the time.  An investigation resulted in charges being laid, which resulted in one conviction.

Port Weller Marine Terminal Inc. operates a terminal on the Welland Canal which is part of the St. Lawrence Seaway. At the time of the violation, the company was under contract to unload vessels carrying cement clinker, which had been imported by a Port Weller Marine client.  Clinker is a component of cement and is used in cement manufacturing and can become caustic when wet, potentially causing burns to eyes and skin.

 

CarMax Settles Lawsuit related to Unlawful Handling and Disposal of Hazardous Materials

Seventeen District Attorney’s in California recently settled an environmental protection action against CarMax Auto Superstores California, LLC. The settlement was based on the unlawful handling and disposal of various hazardous materials and hazardous wastes. The action was filed in Orange County Superior Court.

Waste inspections conducted at various CarMax locations in the seventeen Counties uncovered systemic violations of the management and disposal of hazardous waste items and confidential customer information.

“Today’s settlement is a win for the environment,” stated Alameda District Attorney Nancy O’Malley in a news release. “I want to make it very clear to any business operating in Alameda County and the state of California: there is no excuse for improper disposal of hazardous waste. You put us all at risk when you pollute our soil and our waterways. The state as well as local district attorneys will continue to work together to investigate and bring to justice businesses that ignore our important environmental protection laws.”

Nancy E. O’Malley, Alameda County District Attorney

CarMax Auto Superstores California, LLC. is an automotive retailer that operates more than 190 dealerships in at least 28 states, including California. In the ordinary course of business, CarMax handles, transports, stores, manages, uses and disposes of hazardous materials. Additionally, CarMax generates regulated quantities of hazardous waste from its automotive inspection, service and repair departments. Numerous inspections by the California Department of Toxic Substances Control along with local environmental regulators found that CarMax facilities were out of compliance with the hazardous materials and hazardous waste laws.

District Attorney Investigators from several counties conducted undercover inspections of CarMax’s trash containers, which revealed the illegal disposal of hazardous auto body sanding dust, sanding pads, automotive paints, clear coats, solvents, non-empty aerosols, other hazardous substances used during the auto body repair process, and confidential customer information.

In accordance with the Hazardous Waste Control Law and Hazardous Materials Release Response Plans and Inventory Law, the stipulated judgment mandates training, reporting and compliance with the regulations on hazardous materials, and hazardous wastes. The settlement totaling $ 1,600,000 requires CarMax to pay $1,000,000 in civil penalties and $300,000 for investigative costs. CarMax will also make an additional payment of $300,000 to fund supplemental environmental projects furthering consumer protection and environmental enforcement in California. CarMax was cooperative throughout the investigation and implemented training and compliance programs at each of its facilities.

The case was brought in conjunction with the District Attorney’s offices of Orange, Riverside, Los Angeles, San Bernardino, Fresno, Stanislaus, Kern, Ventura, Sacramento, Placer, San Diego, Solano, Sonoma, Santa Clara, San Mateo and Contra Costa counties, where CarMax facilities are located.

Posted on Jun 11, 2020

Canadian Report on Environmental Fines and Penalties in 2019

The Environmental Insurance Group at Berkley Canada recently released there latest report on Environmental Fines and Penalties: 2019 Update Report which covers all of Canada.  The report summarizes the use of fines and penalties by regulators across Canada and explains how environmental insurance may respond to the risk.

The report acknowledges that Canada has historically used fines and penalties sparingly compared to Europe or the United States. Between 1991 and 2009, the average total value of fines and penalties levied in Canada was $1.4 million per year.  In late 2014, this changed dramatically.  That year, Environment and Climate Change Canada (the Canadian equivalent of the U.S. EPA), issued a penalty of $7.5 million against Bloom Lake General Partners (a subsidiary of Cliffs Natural Resources).  The penalty arose out of breaches to the Canadian Fisheries Act and Metal Mining Effluent Regulations.

While fines and penalties are designed to encourage compliance with environmental legislation, they are generally enacted under a strict liability framework.  This results in them often being imposed in response to an accident or unintended event.

US Relaxation of Environmental Rules in the Wake of the COVID-19 Pandemic – The Implications for Canada and Mexico

Written by Joseph Castrilli, Counsel, Canadian Environmental Law Association

In a move that has implications for international arrangements with Canada regarding protection of the North American environment, the Environmental Protection Agency of the United States, citing the coronavirus pandemic as its justification, has announced that it will temporarily not seek penalties against companies that violate monitoring, reporting, and other obligations under US federal environmental laws. In a policy statement issued on March 26, 2020, the agency indicated that it will exercise “enforcement discretion…for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic” if the regulated community takes the steps set out in the policy.

Steps Under the Relaxation Policy

The steps under the policy require the regulated community to: (1) act responsibly to minimize effects and duration of any noncompliance; (2) identify the nature and dates of the noncompliance; (3) identify how COVID-19 was the cause of the noncompliance, the decisions and actions taken in response, including best efforts to comply and return to compliance; (4) return to compliance; and (5) document the information, actions, and conditions specified in steps 1-4.

Regulated Activities Covered by the Policy

The agency’s enforcement discretion under the policy covers: (1) routine compliance monitoring and reporting by regulated entities (the policy indicates that “EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request”); (2) settlement agreement and consent decree reporting obligations and milestones (the policy adopts the same position as in point number (1), above, but notes that consent decrees are still subject to independent judicial oversight); and (3) facility operations (the policy indicates that it applies to facility operations impacted by COVID-19 that may create acute risk or imminent threat to human health or the environment, result in air emission control, wastewater, or waste treatment system or equipment failure that may result in exceedances of enforceable limits, cause hazardous waste generation transfer, or animal waste feeding operation compliance, delays, or other noncompliance, all of which are generally to be covered by steps 1-4, above, except for imminent threats which also will require EPA consultation with state or tribal governments).

How the Policy Has Been Viewed in the United States

As reported in the media, the relaxation of environmental measures has been both assailed (“an open license to pollute…and abject abdication of the EPA mission to protect our well being” – Gina McCarthy, EPA Administrator in Obama administration) and defended (“a very straightforward and sensible guidance” – Grant Nakayama, EPA Office of Compliance in Bush administration) by legal, regulatory, and regulated communities in the United States. Others suggested that the issue was not so much the policy itself as how it will be implemented, particularly in the context of air pollution from industrial facilities located predominantly in low income communities where at-risk populations historically under stress from air pollutants that exacerbate asthma, breathing difficulty, and cardiovascular problems now also face respiratory threats posed by a virus that attacks the lungs.

Implications for Canada

Despite the policy’s direct impact in the United States, there are significant implications for Canada (and Mexico) as well. First, there are a myriad of cross-border environmental problems a policy such as this could exacerbate. Air emissions from the Ohio Valley have long had significant impacts in Ontario, Quebec, and the Maritimes. Superfund hazardous waste sites along the Canada – United States border, such as in the Niagara area, have long had significant implications for the integrity of the shared waters of the Great Lakes. Water pollution discharges from the state of Washington impact the Salish Sea, the estuary formed by inland waters with southern British Columbia that connect to the Pacific Ocean primarily through the Strait of Juan de Fuca.

Second, there are a variety of pacts between Canada and the United States that the policy could ride roughshod over:

• The Boundary Waters Treaty of 1909 (Article IV, section 2) that requires that neither country should cause water pollution in its waters which will cause injury to health or property in the other country and the companion Canada-United States Great Lakes Water Quality Agreement of 2012, which provides for a regional mechanism to achieve the Treaty’s goals in the Great Lakes Basin ecosystem;

• The Canada – United States Air Quality Agreement, signed in 1991, with the goal of reducing air emissions that cause acid rain, which was expanded in 2000 to reduce transboundary smog emissions; and

• The environmental side agreement under the North American Free Trade Agreement (as amended) commits Canada, Mexico, and the United States to ensuring that their laws and regulations provide for high levels of environmental protection and that they are effectively enforced through measures that include compliance monitoring and reporting (Articles 3 and 5).

Whether viewed as a waiver of monitoring and reporting requirements with respect to emissions or discharge limits or, more ominously, as a waiver of compliance with the limits themselves for the duration of the pandemic, this is not good news for the environment or public health in North America especially in the midst of a pandemic caused by a virus that attacks the respiratory system of its victims. It is also not clear whether Canada (or Mexico) were consulted by the EPA before this policy went into effect (it is retroactive to March 13, 2020). Coupled with the major de-regulation push the EPA has been engaged in over the past few years, the policy seems all of a piece with the worst impulses of those who want to de-construct the administrative state. We can do better than turn the clock back to the dark ages of environmental non-regulation. In the midst of a pandemic, stopping the spread of bad ideas would be a good place to start, including ensuring they are not imported to Canada.


About the Author

Joseph F. Castrilli is counsel to the Canadian Environmental Law Association in Toronto. He is a member of the Ontario and British Columbia Bars, is certified as a specialist in environmental law by the Law Society of Ontario, and has appeared before all levels of court on environmental matters, including the Supreme Court of Canada. He also has taught environmental law courses and seminars at Queen’s University, University of Toronto and Osgoode Hall Law School at York University.

 

Ontario: Waste Processing Company Fines Increased to $170,000 for Environmental Protection Act Violations

The Ontario Environment Ministry recently announced that an appeal court varied the sentence of an Ontario waste processing company and increased the fine from $140,000 to $170,000. The $30,000 fine increase reflected the anticipated cost of an embedded audit. The victim fine surcharge also increased from $35,000 to $42,500. The sentencing court also vacated the Order requirement that the company conduct the embedded audit.

The appeal court ruling stems from two separate matters in which an Ontario waste processing company, Quantex, was convicted of violations related to permitting waste to pass from its control without accurately completing a manifest, for transferring waste subject to land disposal restrictions without giving notice to the receiver, and for permitting the emission of an air contaminant to an extent that it may cause personal discomfort.  The offences occurred in 2016.

The company was originally convicted in 2018.  The Ontario Court of Justice granted the Crown’s appeal of the sentence that had been imposed on June 26, 2018 after a guilty plea, and increased the fine from $140,000 to $170,000, plus victim fine surcharge.

On June 26, 2018, Quantex was convicted of three violations and was fined a total of $140,000 plus a victim fine surcharge of $35,000 with 2 years to pay. The court also issued a probation order requiring the company to retain an independent auditor to conduct an embedded audit of some of the company’s waste management practices.

In December 2018, when the embedded audit was to begin, Quantex advised the Crown that it had sold the facility. It subsequently became apparent that the company had sold the facility prior to being sentenced in June 2018 and that Quantex had provided inaccurate information to the sentencing court. Therefore, the earlier sentencing had been conducted on the basis of inaccurate information.

At the time of the violations, Quantex Technologies Inc. operated a hazardous and liquid industrial waste transferring/processing site in Kitchener under ministry approval.  In the first matter, between November 2015 and January 2016, Quantex accepted hazardous wastes which were bulked together and shipped to another waste processing/transfer facility. Ministry inspection indicated that the waste manifest did not accurately reflect the waste classifications and that Quantex had not notified the receiver that some of the waste was subject to land disposal restrictions. As a consequence, the receiving facility was not aware that some of the waste had classifications that were not approved under the company’s ministry approval.

In the second matter, in August 2016, Quantex employees were transferring liquid industrial and/or hazardous wastes from storage totes into a tanker trailer on-site, and the truck’s vacuum pump and exhaust was being discharged into the air. During the transfer period, neighbours experienced burning and irritated eyes, a chlorine-like odour and difficulty breathing. The occurrence was reported to Quantex, which ceased the operation immediately.

The Environment ministry’s Investigations and Enforcement Branch investigated and laid charges resulting in three convictions.