Environmental law updates (not advice) by a top Canadian lawyer

The Ontario government has today posted significant proposed changes to its brownfield regulation and standards. The complete package has been posted on the EBR and can be found at www.ontario.ca/brownfields under the “Protecting the Environment” link. Also attached is an unofficial consolidated version of what O. Reg. 153/04 would look like if the proposed amendments were adopted.

Ontario’s latest contaminated site decision is Kipfinch v. Westwood Mall (Mississauga) Limited. The  intended purchaser of a $25 million shopping mall was unable to obtain financing after the vendor refused to allow invasive testing in an area formerly occupied by a dry cleaner.

The agreement of purchase and sale required the purchaser to satisfy itself of the environmental conditions of the property, but allowed the vendor to refuse to permit unduly invasive testing. The vendor refused to permit wells to be drilled in the retail area of the mall, even at night. Held, the vendor’s refusal was unreasonable, given the proximity of this area to the dry cleaning operation and the limited impact the testing would have. The Purchaser thereby lost a 50% chance of making a $660,000 profit, and was awarded $333,000 plus costs.

At the request of several correspondents, we are posting here a link to www.VoteForEnvironment.ca, a website the Ottawa Citizen called a ”sort of a GPS for rudderless anti-Tories”. Its theory is that a vote for Harper is a vote against effective action on climate change,  and that splitting of votes among left-wing parties could guarantee a Conservative victory.

2008 has been an exciting and confusing year in Canadian environmental law. We gave a overview of the most important developments this week - our presentation is posted at What’s New in Canadian Environmental Law, 2008?

The spreading credit crisis will inevitably have a significant impact on brownfields redevelopment in Canada. Softer real estate markets and lower industrial profits reduce the potential economic value of contaminated sites. Tougher credit and higher borrowing costs restrict the availability of capital for the capital intensive process of brownfield acquisition and remediation. Meanwhile, regulatory and civil liability standards for contaminated sites continue to grow stricter, increasing the time and cost required to achieve successful remediation.

In Ontario, the Ministry of the Environment continues to promise a new, stricter set of brownfield cleanup standards, to come into effect over the next year or two. The standards will also make brownfield clean-ups more difficult, and will force far more sites into the expensive, time-consuming and uncertain process of risk assessment.

Can you beat City Hall?

There’s a wonderfully inspiring story online how a North York artist turned her four-car parking pad into a garden, notwithstanding municipal requirements for a paved driveway. Franke James eventually got Toronto’s first permit for a “green” driveway, and estimates that she has already kept 10,135 gallons of stormwater out of the sewers. Hopefully, she’ll inspire many more people to do the same.

 it’s great to read good news for a change.

In light of Ontario’s forthcoming Toxic Reduction Law, Jackie Campbell has taken a detailed look at one of the latest chemical health scares: how dangerous is bisphenol A (“BPA”)?

A recent, preliminary study has found high levels of urinary BPA in association with heart disease and diabetes in adults. This is the first good evidence that BPA may be toxic to adults, in addition to the threats to infants that Health Canada cited when proposing to name BPA a “toxic chemical”. Health Canada’s final screening assessment report on BPA under the Canadian Environmental Protection Act, 1999, is scheduled to be published on October 18, 2008, for public comment. [Read more →]

Prime Minister Harper promised today a substantial increase in federal environmental enforcement. He ridiculed Environment Canada’s enforcement record  and promised to get tough on polluters. Some of the promises would be significant improvements, such as hiring specialized environmental prosecutors, (as Ontario has done for 20 years); paying environmental fines into the Environmental Damages Fund to support local projects, and posting records of environmental convictions on a publicly searchable database.  An additional $20-25M per year for more wildlife and environmental enforcement officers would also be welcome; wildlife staff, in particular, are very thinly stretched.

In contrast, some of the other promises are of little significance. [Read more →]

The Federal Government has adopted new PCB Regulations, SOR/2008-273  to end the use and storage of polychlorinated biphenyls (PCBs) at or above 50 mg/kg. PCBs have been strictly regulated for more than 30 years, but previous federal regulations allowed PCBs in existing equipment to remain in use and in storage indefinitely. Almost 1/3 of these PCBs are owned by electric utilities.

December 31, 2009 is now the deadline to eliminate the use of PCBs and PCB equipment at or above 500 mg/kg, although the Minister may permit extensions while new equipment is being ordered. PCBs and PCB equipment at or above 50 mg/kg may be used until December 31, 2025, except within 100 m of:

a drinking water treatment plant or food or feed processing plant,

a child care facility, preschool, primary school, secondary school, or

a hospital or senior citizens’ care facility.

Stricter rules for these sensitive areas are becoming increasingly common.

Light ballasts and pole top transformers may also be used until 2025.

[Read more →]

Ontario’s proposed Toxics Reductions Law gained urgency this week with the distribution of new research on human health impacts of common chemicals. Bisphenol A, widely used in plastic bottles and other food containers, has now been linked with adult cardiac problems. And body loads of persistent organic pollutants have been correlated with increased risks of diabetes. More good reasons to use common sense and reduce levels of man-made chemicals in our air, water and food.