Oba Construction Nov 16 11

Environmental Law for Construction Lawyers

November 16, 2011

Dianne Saxe

November 16, 2011 Dianne Saxe 2

Overviewn Examplesn Who does what?n Key obligationsn Enforcement


Dustn R. v. Warren Bitulithic (2001)n Dust from portable gravel crushern Covered vehicles nearbyn Paid cleanup n Fine: $15,000 plus VFS


Dust, #2n R. v. Hard Rock Paving (2007)n Reconstruction of raised trackn Strong winds, history of dust complaintsn Angry neighboursn Owner authorized watering after MOE calln Prosecution 2 years latern Fine: $5700


SiltR. v. Spruce Falls Inc. (2003)n Faulty road-building: silt into creekn Impact severe: altered course, changed habitatn Fines (+VFS):

n $25,000 (discharge that may impair)n $5000 (failure to report to MOE; had reported to

MNR)n $10,000 (failure to follow work plan)

n PLUS spent > $100,000 to remediate and upgrade erosion-prevention measures


Silt, #2n R. v. Barrien Fisheries Actn CA fill permitn Is municipality liable for developers’s

erosion?n City accepting dedication of roads, EPZ

November 16, 2011 Dianne Saxe

Torbear Constructionn Sewage plant upgrade affecting

containmentn Subcontractor broke chemical pipen No extra precautionsn $80,000 + VFS

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Nethercott Excavatingn Transported contam soil as “fill”n Convicted of using waste management

system w/o coan $8,000 + VFS

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Mattamy (Half Moon Bay)n Burned wood waste in open firen Establishing waste site w/o permitn also no waste auditn $24,000 + VFS

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Taggart Constructionn Taking excess water w/o PTTWn $5,000 +VFS

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Biloski Contractorsn Hauled demolition waste to private pptyn Depositing waste at unapproved siten $15,000 + VFS + cleanup

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Fraud artistn Surplus soil dumped on illegal sitesn Mixed with illegal dumping by third partiesn Fraudulent plan by disgruntled contractorn Charged with fraud....


Heyes v South Coast BCn Class action for noise/ disruption during

Canada Line constructionn Successful at trial, overturned on appeal,

SCC refused leave

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Overviewn Some casesn Who Does What?n Key Obligationsn Enforcement


Who does what? n Federaln Provincial n Municipal


Federal Rolen Issues of national/international concern

n Crossing borders (e.g., import/export of hazardous waste, transport of dangerous goods, climate change)

n Toxic substancesn Science/standard setting

n “Federal house”n Federal government/agenciesn Areas of exclusive federal jurisdiction (harbours,

railways, aviation, nuclear power, oceans, fisheries)


Key statutes

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n Environment Canada:n Canadian Environmental Protection Act, 1999n Canadian Environmental Assessment Act

n Department of Fisheries and Oceans:n Fisheries Act


Provincial Rolen Most environmental issues

n Air, land, and watern Property and civil rightsn Natural resources

n Key provincial statutesn Environmental Protection Act

n Regulation 347 (Waste)n Ontario Water Resources Actn Clean Water Act, 2006n Toxic Substances Reduction Act


Municipal Rolen Steadily growing

n Off-loading by provincesn More responsibilities than money

n Key statutesn Municipal Act, 2001

n Sewer bylawsn Site alteration bylaws

§ Planning Act


Other Agenciesn Conservation authorities

n fill controln flooding

n Source water protection committeesn Protecting sources of drinking water

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Overviewn Some casesn Who Does What?n Key Obligationsn Enforcement


Key obligationsn Don’t polluten Get all the right permitsn Report, report, report

n There are lots more...

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Don’t pollute n “Normal” dischargesn Spillsn Waste

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Dischargesn e.g. EPA S. 14 - No person shall

n discharge…or cause or permit the discharge of

n a contaminantn into the natural environment, thatn causes or may causen an adverse effect.


Who is the polluter?n Who “causes or permits”?n Who has “charge, management and

control”?n Corporationn Officers/Directorsn Senior managementn Staff?


Don’t pollute n Ontario Water Resources Act

s.30 – “cause or permit” a discharge that pollutes water

n Fisheries Acts.35 - Carry on a “work or undertaking” that harms

fish habitat (HADD)s. 36- Deposit deleterious substance in waters

frequented by fish

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Controln Liability rests upon control and the power/

authority/opportunity to preventn R. v. Sault St. Marie

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What is Pollution?n “Contaminant”, s.1n Anything with potential for adverse effect

n Solid (e.g., dust, smoke, flyrock)n Liquid (e.g., wash water)n Gas n Vibration n Noisen Odour


Adverse Effectn Impairment, injury, damage, harmn Impair quality of environment for any usen Interference with normal use of propertyn Material discomfort


How much is too much?n Objective benchmarks

n Regulationsn Guidelinesn Permits

n Subjectiven Adverse effect

n Trivial impacts?


SpillsWhat is a spill?n Abnormal discharge out of a structure,

vehicle or other containern of a pollutant n into the natural environmentn that causes or is likely to cause an adverse

effect


Is that a spill?n No minimum quantityn Need not leave propertyn Odours or gas (not noise) can = spilln Leaksn Flyrock


Obligationsn Stop spilln Report

n To MOE, Municipality, owner of pollutant, AND person in control of pollutant,

n Plus OHSA if impact on a workern Contain and clean up

n Restore natural environment to the extent practicablen Civil liability


“You spill, you pay”n Environmental penalties for spillsn Absolute liabilityn Administrative processn Penalties increase with time

n To start: only MISA sector facilities affectedn Factors: seriousness of violation; consequences;

monetary benefit gained; duration of offence; previous violations and

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Don’t pollute: Waste n Elaborate rules for all kinds of wastesn All sites need C of An Cradle-to-grave control for hazardous

wastesn Special substances, e.g. Asbestos

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Moving soiln New Part XII (Soil)n MOE has talked about movement of “clean” soils for

yearsn Some argued that only “inert fill” (Table 1) could be

movedn This restrictive interpretation was rarely followed….but is

now lawn How much more will it cost to dispose of surplus soils

from construction projects?


Better samplingn Must sample all soil brought to RSC property n Analyse everything “may reasonably be

expected to be potentially present”n Segregate stockpiles by suspected level of

contaminant, and sample eachn RSC’s require reports documenting and

quantifying all movements of soil on and off an RSC property


Where can it go?n Can freely transport & deposit only soils

that meet Table 1n Soils that meet Tables 2 or 3 may only be

transported to already-contaminated propertiesn that were used as gas stations, garages, dry

cleaners, industries, andn require an RSC before conversion to a more

sensitive use (s. 32)


Get all the right permitsn Air and water pollution permits

n Certificates of approval (permits)n Standards get steadily tougher

n Waste management systems and disposal sites

n Ontario’s approval system is changing dramatically


Other permitsn Federal and provincial environmental

assessmentn Renewable energy approvalsn Sewer bylaw discharge agreements

n changing this year in Toronto

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Report, report, reportn Spillsn NPRIn GHGsn Waste diversionn Permit conditions

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Other obligationsn Contaminated sites

n rules changed July 1, 2011n Endangered speciesn Dangerous pestsn Chemicals Management Plann Protected areasn etc.

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Overviewn Some casesn Who Does What?n Key Obligationsn Enforcementn Due Diligence


Enforcementn The Players

n MOE/ DFOn Minister, Director, Provincial Officer

n Ordersn Minister’s, Director’s, POO, Court/ERT Orders

n Offencesn Breach Act or regulationsn Fail to comply with Order, CofA, other permits


Limitation period n Two years after the later of the day the offence was

committed and the day on which evidence re the offence first came to the attention of a Director

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Offences:n Less serious n More serious

n Breach numerical limit in order, CofAn Discharge adverse effect (actual or likely)n Fail to reportn Obstruct PO, false info


Penalties - less serious offences n Individuals:

n First conviction: ≤ $50,000 per day (first offence)n Subsequent convictions: ≤ $100,000 per day and/or

imprisonment for ≤ 1 yearn Corporations:

n First conviction: ≤ $250,000 per dayn Subsequent convictions: ≤ $500,000 per day


Penalties - more serious n Individuals:

n First conviction: $5,000 to $4 million per dayn Second conviction: $10,000 to $6 million per

day n Subsequent convictions: $20,000 to $6

million per day and/orn imprisonment for ≤ 5 years


Penalties - more serious n Corporations:

n First conviction: $25,000 to $6 million per day

n Second conviction: $50,000 to $10 million per day

n Subsequent convictions: $100,000 to $10 million per day


Sentencingn Aggravating factors (adverse effect, intentional/

reckless, motivated by profit, prior convictions)n Mitigating factors (act done in good faith, quick

response…)n Plus victim fine surcharge: 25%n Criminal conviction?


Officers/directors- s.194n Duty to take all reasonable care to prevent corporation

from contravening Act byn Discharging or causing/permitting discharge n Failing to notify MOE of dischargen Contravening an Order under the EPA

n Failure to discharge that duty - person is guilty of an offence

n A director or officer of a corporation may be convicted whether or not the corporation is prosecuted


Overviewn Some Casesn Who Does What?n Key Obligationsn Enforcement


Questions? Comments?

Saxe Law Office248 Russell Hill Road

Toronto, Ontario M4V 2T2

Tel: 416-962-5882

Fax: 416-962-8817

Email: [email protected]

envirolaw.com

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Oba Construction Nov 16 11

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