Edited by Katherine van Rensburg
Contents
IN THE COURTS
- Canadian Company Sued Under U.S. Superfund Law
INTERNATIONAL
FEDERAL LEGISLATION AND REGULATORY NEWS
NEWS FROM THE PROVINCES
IN THE COURTS
Canadian Company Sued Under U.S. Superfund Law
Legal action has been commenced in the state of Washington to assert a claim under the U.S. federal Superfund law by the Colville Confederated Tribes against Teck Cominco Metals Ltd. The Washington State Governor and Attorney General have recently joined the action as plaintiffs. The action represents the first claim in an American court against a Canadian entity claiming compliance with and relief under U.S. Superfund laws.
The case deals with discharges from Teck Cominco's lead-zinc smelter located in Trail, B.C., approximately ten miles north of the U.S. border. It is alleged that from 1906 to mid 1995 Teck Cominco dumped 142,000 tonnes of slag into the Columbia River, resulting in contamination of surface water, groundwater and sediments of the river and Lake Roosevelt, a man made lake created by the Grand Coulee Dam which borders the Colville lands.
In 1999 the Confederate Tribes petitioned the U.S. Environmental Protection Agency (the "EPA") to list Lake Roosevelt as a Superfund site. As an alternative to the Superfund process, Teck Cominco attempted to negotiate an agreement with the EPA that would have provided U.S. $13 million in funding for studies of pollution in Lake Roosevelt. It was proposed that the Teck Cominco's affiliate, Teck Cominco American Incorporated, would enter into the agreement with the EPA. It is reported that negotiations broke down when the EPA insisted that the Canadian entity sign the agreement. On December 11, 2003 the EPA issued a Unilateral Administrative Order to the Canadian entity requiring studies to be taken. The Canadian government objected to the action as an improper extra-territorial extension of U.S. laws.
Teck Cominco has filed a motion with the U.S. court to dismiss the action. The motion claims that the application of the U.S. Superfund law is "patently unfair" to Canadian companies since U.S. companies can rely on permits issued under American laws in their defence, while Canadian permits are not recognized. In addition, U.S. firms can bring other potentially responsible polluters into the process, but Canadian firms do not have this ability. The motion to dismiss is scheduled to be heard November 4, 2004.
This case has significant implications for other Canadian businesses whose environmental emissions may have impacts south of the border. We will monitor its progress with interest and report further as the legal challenge proceeds.
INTERNATIONAL
North American Commission For Environmental Cooperation
On August 20, 2004, the Council of the Commission for Environmental Cooperation ("CEC"), a body established under the North American Free Trade Agreement, instructed the CEC Secretariat to prepare a factual record on allegations that Canada is failing to effectively enforce provisions of the federal Fisheries Act in relation to the Montréal Technoparc site.
A number of Canadian non-governmental organizations allege that PCBs, polcyclic aromatic hydrocarbons and other pollutants are discharging into the St. Lawrence River from the Technoparc property in Montréal. Sub-section 36(3) of the Fisheries Act prohibits the deposit of a deleterious substance into water frequented by fish. The Technoparc location was a waste disposal site for almost 100 years.
The Council instructed the Secretariat to prepare a factual record on several specific issues:
- facts surrounding Environment Canada's inspections before and after the issuance of a warning in 1998;
- facts surrounding Environment Canada's 2002 - 2003 investigation in response to a request from members of the public;
- characteristics and fate of the contamination of the Montréal Technoparc sector;
- results of the oil containment and pumping system(s) at the Montréal Technoparc sector;
- the ecotoxicological study carried out in 2002;
- information on the division of ownership of the Montréal Technoparc sector and its relevance to enforcement efforts;
- information on Environment Canada's technical actions and advice and its relevance to enforcement efforts at the Montréal Technoparc sector; and
- compliance promotion efforts following the decision by Environment Canada not to seek charges.
The Council directed the Secretariat to provide the parties with its work plan and to provide the parties with an opportunity to comment on the work plan.
For more information see:
CEC Council Adopts The Puebla Declaration
The Commission for Environmental Cooperation has adopted the Puebla Declaration, establishing the principles which will set the foundation for the next decade of environmental cooperation for Canada, Mexico and the United States.
The Puebla Declaration affirms the commitment of the Governments of Canada, the United States and Mexico to three priority areas over the next decade:
- improved environmental information to support decision-making;
- capacity building, emphasizing strength and environmental management in Mexico; and
- further understanding of trade and environment linkages.
Consistent with the latter issue identified in the Puebla Declaration, the CEC has now issued a call for papers to explore the link between investment growth through trade liberalization and the environment, as well as to investigate the extent to which NAFTA institutions are improving, or not improving, the ability of the NAFTA governments to eliminate negative effects and seek positive linkages between economic growth and the environment. Submissions must be delivered by October 8, 2004.
For more information see:
Federal Legislation And Regulatory News
Discussion Document - Marine Spark-Ignition Engine And Off-Road Recreational Vehicle Emission Regulations
Environment Canada has prepared a discussion document concerning proposed Marine Spark-Ignition Engine and Recreation Vehicles Emissions Regulations for review and comment.
The planned regulations will establish emission standards for outboard engines, personal watercraft, snowmobiles, off-highway motorcycles and all-terrain vehicles. They will apply to 2007 and later model-year engines. Companies involved in the manufacture, distribution or importation for the purposes of sale of these vehicles and engines may be directly affected.
Comments received by October 8, 2004, will be considered in developing in a formal proposal in the Canada Gazette, Part I, expected this Winter. There will be a further opportunity to comment after publication in Part I of the Canada Gazette.
For further information see:
Canada-Wide Strategy For The Management Of Municipal Wastewater Effluent
The Canadian Council of Ministers of the Environment ("CCME") has announced that it has established a Development Committee to develop a Canada-wide Strategy for the Management of Municipal Wastewater Effluent ("MWWE") by November 2006.
MWWE is one of the largest sources of pollution, by volume, being discharged to surface waters in Canada. It is currently managed through a variety of policies, by-laws and legislation at the federal, provincial/territorial and municipal levels.
The Canada-wide Strategy contemplates the development and implementation of a harmonized regulatory framework. The intended foundation of the framework is a coordinated science and research platform to support an environmental risk management model with an integrated list of pollutants, achievable/desirable performance standards and characteristics of the site-specific receiving environment. The process will also consider the costs of implementation that would be faced by municipalities and will address appropriate phase-in to enable required municipal financial planning.
It is intended that the Development Committee will be engaged in a range of stakeholder consultations throughout the period of strategy development.
For further information see:
Canadian Nuclear Safety Commission ("CNSC") Decision To Issue A Waste Facility Construction Licence
The CNSC has announced its decision to issue a Waste Facility Construction Licence to Ontario Power Generation Inc. ("OPG") for the construction of the Darlington Used Fuel Dry Storage Facility on the site of the Darlington Nuclear Generating Station. A construction licence will not permit any used fuel to be transferred to the facility; an operating licence would be required to enable such transfers to occur.
The decision followed a public hearing held on April 28, and July 9, 2004. The CNSC considered written submissions and oral presentations from OPG, CNSC staff, and an intervenor. The CNSC concluded that OPG is qualified to carry on the activity to be licensed and that OPG will make adequate provision for the protection of the environment, the health and safety of persons, and the maintenance of national security and measures required to implement international obligations to which Canada has agreed.
For more information see:
Revised Agreement For Environmental Assessment Cooperation Between The Governments Of Canada And Alberta
The Ministers of Environment of Canada and Alberta have announced that they are seeking comments from interested individuals or groups on a revised agreement for environmental assessment cooperation. A 30 day public consultation period will extend from September 1, 2004, to September 30, 2004.
The proposed agreement will follow the 1999 Agreement between Alberta and Canada which expired on June 24, 2004. The proposed Agreement establishes administrative mechanisms and guides federal provincial cooperation for the environmental assessment of projects subject to both the Canadian Environmental Assessment Act and the Alberta Environmental Protection & Enhancement Act. Copies of the draft Agreement and other related information can be viewed on the Web sites of the Canadian Environmental Assessment Agency and Alberta Environment.
For more information see:
www.ceaa-acee.gc.ca.
NEWS FROM THE PROVINCES
Ontario Appoints Expert Panel - Water And Wastewater Services
The Ontario Government has appointed an Expert Panel to advise on how to make the investment needed to improve Ontario's water and wastewater infrastructure and on how to best organize and deliver water and wastewater services.
The Expert Panel is tasked with responsibility to advise the provincial government on all aspects of organization, governance, investment, financing and pricing related to Ontario's water and wastewater systems. It is to recommend a solution which maintains public ownership while ensuring that the investment needed to improve water and wastewater infrastructure takes place, and that water and wastewater systems are financially sustainable with water rates that are affordable.
For more information see:
Ontario's Industrial Pollution Action Team Report
Ontario's Minister of the Environment, Leona Dombrowsky, has accepted the Final Report of the Industrial Pollution Action Team ("IPAT") and announced that the government will act on its recommendations.
IPAT was formed in the Spring of 2004 in response to a number of industrial spills which occurred along the St. Clair River, including several spills which resulted in the closure of municipal water intakes. The Panel's report is now available on the Environmental Bill of Rights Registry during a 60 day comment period. It presents 15 Findings and 35 Recommendations for spill measures.
The Ministry of the Environment has announced that its action plan will focus on three core issues:
- enhancing the MOE's scientific capacity;
- developing innovative policies to protect Ontario's environment; and
- implementing new ways to enforce Ontario's environmental legislation.
For more information see:
Ontario's Blue Box Program
The Ontario Minister of the Environment has approved the Schedule of 2004 Stewards' Fees for the Blue Box program.
For more information see:
The Minister is now soliciting public comments on proposed new measures and enhancements to the Blue Box Program Plan which are designed to contain costs incurred by municipalities in the operation of their Blue Box systems and to minimize the impact of the Blue Box Program on small business.
For more information see:
www.ene.gov.on.ca/envregistry.
Amendments To Compliance Requirements Under The Nutrient Management Regulations For Large Livestock Farms
Ontario's Nutrient Management Regulation currently requires all existing large livestock farms to have an approved nutrient management system and nutrient management plan by July 1, 2005.
The Ministry of Agriculture, Food and Rural Affairs has now recognized that it may be difficult for some owners of existing large livestock farms to complete all the work necessary to comply with the current regulation by July 1, 2005. The proposed amending regulation will allow by exemptions additional time for this work to be completed.
The proposed exemptions would be in relation to some of the requirements of the Nutrient Management Regulation for a limited period of time provided that the owner or operator of the large livestock farm submits a Nutrient Management Strategy on or before July 1, 2005.
Effective July 1, 2005, an existing large livestock farm would be required to:
- submit a Nutrient Management Strategy;
- comply with municipal well setbacks for land applications; and
- comply with the winter spreading restrictions.
As well, it is proposed that the requirement to submit a Nutrient Management Plan prepared in accordance with the Regulation and Protocols would be extended to no later than December 31, 2005.
The proposed exemption is intended to allow producers sufficient time to access funding and to complete on-farm improvements necessary to comply with the requirements of the Regulation.
For more information see:
www.ene.gov.on.ca/envregistry.
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