Recent Developments in Environmental Law - April 2008

Written By Hilary Stedwill and Duncan McPherson

Federal

• The Government of Canada is proposing to amend the federal regulations to reduce the lawful concentration of phosphorus in laundry detergents from 2.2 percent to 0.5 percent and restrict the concentration of phosphorous in dishwasher detergent and general purpose cleaners sold and used in Canada to 0.5 percent as well. These amendments are scheduled to come into force sometime in 2010.
• The Government of Canada issued “Batch 5” of its Chemicals Management Plan. Where a company imported, manufactured or used more than certain amounts of substances appearing on the fifth in a series of lists issued by Environment Canada (called Batches), the company may need to submit information to Environment Canada about those substances by June 17, 2008. For more information, see: http://www.chemicalsubstanceschimiques.gc.ca/
• The 2007 National Pollutant Release Inventory data requirements were amended, including for pit and quarry operators. The requirements for the 2008 Inventory was also issued.
• The Government of Canada published new details on its plans for reducing emissions of greenhouse gases by 20 percent below 2006 levels by 2020. If implemented, oil sands projects and coal-fired electricity generation facilities becoming operational after 2011 will be held to emission standards, effectively requiring them to implement carbon capture and storage. Draft regulations are scheduled for release for public comment by Fall 2008. Final regulations are expected to come into force on January 1, 2010.

Ontario

• The Minister of the Environment approved a waste diversion program for “Municipal Hazardous or Special Waste.” Companies that own or license trademarks used on, or who import into Ontario, certain products including paints, solvents, oil filters, dry cell batteries, antifreeze and fertilizers may be required to pay fees to Stewardship Ontario to cover the costs for their disposal.
• The Government of Ontario amended regulation 153/04 to only allow persons holding licenses, limited licenses or temporary licenses under the Professional Engineers Act or persons holding a certificate of registration under the Professional Geoscientist Act, 2000 with certain memberships in the Association of Professional Geoscientists of Ontario to be “qualified persons” for the purpose of filing records of site condition.
• The Ontario Court of Appeal issued two decisions confirming machine guarding must be installed when it is required by health and safety statutes and regulations. The Court ruled that employee training or other procedural safeguards are not sufficient for a due diligence defense.
• Ontario Electronic Stewardship, the Industry Funding Organization responsible for developing a proposed diversion program for waste electrical and electronic equipment issued its draft program for comment. Ontario Electronic Stewardship planned to submit its program to the Minister of the Environment for his approval by March 31, 2008.

Alberta

• The Federal Court released its decision in a judicial review of the environmental assessment of the Kearl oil sands project: Pembina Institute for Appropriate Development v. Canada (Attorney General). The Court dismissed allegations that the Joint Alberta-Federal Panel failed to comply with the Canadian Environmental Assessment Act by relying on mitigation measures related to reclamation and water management that were uneconomic and technically unfeasible. However, the Court found the Panel erred by failing to provide a cogent rationale for its implicit conclusion that the adverse environmental effects of the project's greenhouse gas emissions would be insignificant. The Court ordered the Panel to reconvene to reconsider this issue.