Water - Environmental Law and Litigation

WATER
E
SAXE E-NEWS
Water, Water
Everywhere
nvironment Minister
Dombrowsky’s
personal commitment
to water continues to drive
water issues ahead on the
provincial agenda while other
issues lag. There is still no
sign of the long-promised
regulations to implement most
of Bill 56, the 2002
Brownfields Statute Law
Amendment Act. Nor has there
been any further word about
much-discussed reforms such
as Administrative Monetary
Penalties. However, this
month’s news about water
includes:
WHITE PAPER
The new White Paper on
Watershed Based Source
Protection Planning proposes
an elaborate planning structure
for source protection, based
on conservation authorities. It
builds on Justice O’Connor’s
recommendations in the
Walkerton Inquiry Report as
well as the framework
suggested by the Advisory
Committee on Watershedbased
Source Protection
Planning. However, it seems
to steal the thunder of the
advisory committee (cont. 2)
Climate Change
Federal Environment Anderson
spoke in Toronto this month
about the Martin government’s
commitment to action on
climate change. Although still
unable to give any concrete
details of federal regulation on
climate change, the Minister
repeated his message that:
• Climate change is a real and
serious problem,
• Many organizations are
already making good progress,
at surprisingly low cost, and
• We urgently need to do
more. Failing to act would be,
he said, like playing Russian
roulette.
Inside This Issue
1 Water, Water Everywhere
2 Good News for Consultants
3 Cross Border Waste Tracking
4 We love Algonquin Park
February 2004
OBSTRUCTION
Can They Really
Do That
A recent case sets a surprising
precedent in what constitutes
obstruction of an environmental
officer.
In 2002, Crompton Co.
(formerly Uniroyal Chemical)
reported a spill of treated
cooling water from its Elmira
plant. Cooling water is rarely
highly toxic. An MOE officer
demanded a written report on
the spill, and on measures to
prevent a recurrence.
The statutory authority for such
a demand is unclear at best.
Crompton refused to provide the
report unless ordered to do so
by the Director. The Director so
ordered, and Crompton filed the
report.
Amazingly, Crompton was then
charged and found guilty of
obstructing the officer, contrary
to s. 184 (1) of the EPA, and
fined $4,000 (plus the usual
25% victim fine surcharge).
Dianne Saxe Professional Corporation, Barristers and Solicitors, 355 St. Clair Ave. W., Ste. 1506,
Toronto, ON M5P 1N5 (416) 962 5882 admin@envirolaw.com. Back copies at www.envirolaw.com.

2 February 2004 Saxe E-News
(cont. from p.1) on
implementation of source
water protection, which has
not yet filed its own report.
The Paper proposes multiple
committees. Every watershed
is to have a multi-stakeholder
Source Protection Planning
Committee, working groups,
and a Source Protection
Planning Board. They will
seek local consensus on a
source protection plan (a
technical assessment and a
management strategy), to be
approved by the MOE, with a
further appeal to the
Environmental Review
Tribunal.
The paper deals extensively
with questions of turf and of
public participation.
Unfortunately, it skirts around
other hard issues such as how
to deal with contamination
caused or threatened by
existing or past land uses, and
the continuing worries about
financing the entire process.
For example, if existing
businesses are downzoned to
protect source water, will they
get compensation If so, from
whom
While White Papers are
traditionally used to float
policy proposals for
consultation, this paper also
lauds and defends other
government water policies,
such as the moratorium on
certain water taking permits,
proposed changes to the water
taking permit process, and the
plan to charge for bulk water
extraction.
Comments until April 12,
2004. Public meetings will
also be held. S e e
http://204.40.253.254/envregis
try/022412ep.htm.
Good News for
Consultants
MOE is vigorously enforcing
its demands that polluters hire
consultants. For example,
Inter-Recycling Systems Inc.
runs a landfill for solid nonhazardous
waste. In 2000, a
Provincial Officer ordered the
company to repair a berm, and
to engage a consultant to
report on the repair to the
MOE. Instead, the company
had the repair inspected by an
employee. For this egregious
breach of the order, the
company was fined $45,000
and the employee $5000 (both
plus 25% VFS).
Peter Lahaie was actually sent
in jail for failing to hire his
consultant. After a fire
ruptured his oil tanks, a
Provincial Officer ordered
Lahaie to retain a consultant to
supervise the cleanup. He
didn’t do it, and went to jail
for 30 days.
More Water: MOU
A shown by the Walkerton Enquiry, MOE and the Ministry of
Health need to share information effectively. A new MOU formally
sets out how they are going to do this at the local (operational) level,
in what ought to be painfully obvious detail. For example: MOE will
give the Medical Officer of Health (MOH) its drinking water
inspection reports, (Part I recommendation #18), together with
“written guidance” (Part I #4). Information re drinking water quality
on First Nations reserves will be forwarded to Health Canada (Part II
Report). The MOH will give MOE copies of its boil water advisories.
Local MOE and health unit personnel will meet regularly to discuss
public health issues, including those documented in MOE inspection
reports. (Part I #5): http://www.health.gov.on.ca/water/3_mou.pdf.
A related protocol gives details for proper drinking water sampling:
http://www.health.gov.on.ca/water/7_sampling_proto.pdf.
Cross-border Waste
The Commission on
Environmental Cooperation
has released a draft report for
public comment: Crossing the
Border, Opportunities to
improve tracking of transboundary
hazardous waste
shipments in North America.
See http://www.cec.org/
Comments by 5 April 2004.
We love Algonquin
The popular Tim River in
Algonquin Park rises west of
the Park, in the midst of
several graphite claims.
Unfortunately, the one
graphite mine nearby has
already created significant
water pollution, and the mine
owner has neither cleaned up
nor paid its fines. Algonquin
Ecowatch thinks its time to
cancel the claims that drain
directly into the Park. If you’d
like to help, call us.
Questions Ask us!
Prepared with the help of
Jackie Campbell
Dianne Saxe Professional Corporation, Barristers and Solicitors, www.envirolaw.com 2