Enviroment, Energy & Resources Law Newsletter - November, 2008

Edited by Barry Spiegel

In this issue...

MOE proposes new Brownfields standards, reforms

Class Action: SCC

Court of Appeal denies Lafarge Appeal

Ontario's Waste Diversion Act faces 5-year

review

Electricity Plan hearing interrupted to reconsider

renewables

DOW launches NAFTA claim re herbicide ban

PCBs—Feds Pass Regulations

Toronto Passes Right to Know Bylaw

Ontario proposes Brownfields regime overhaul

Ontario has published a proposal for regulatory amendments,

new clean-up standards, and new guidance documents that will

significantly affect the Brownfields regime. The package of

proposed reforms was published October for 120 day

consultation.

Major changes will include:

New clean-up standards. Many will be more stringent than

current standards – meaning that more properties will

require risk assessment.

New definitions and procedures for Phase 1 and 2

Environmental Site Assessments

New rules and procedures for filing Records of Site

Condition

New rules for assessing contaminants and investigating

neighbouring land uses to set thresholds for off-site

contamination

No limitation of civil liability is proposed.

The proposed clean-up standards are refinements of the proposals

published in March 2007, to correct errors, modify analytical

detection methods, reflect recent scientific and technological

developments, and address excessive conservatism. New tables have

been added for shallow soil and environmentally sensitive

sites.

Download MOE's Table comparing current standards (March 9,

2004) with the new standards proposed October 6, 2008. (See EBR

Posting No. 010-4642 at www.ebr.gov.on.ca )

The new standards will come into force one year after the

regulations are adopted.

New, stricter standards will mean that fewer RSCs can be done

based on the generic standards. Hence risk assessment will be

required more often. MOE is proposing to streamline the risk

assessment process for qualifying sites through an online

"modified generic risk assessment tool". Stakeholders are

encouraging MOE to develop and implement this tool – a

complex and time-consuming task – before putting the new

standards into effect. Failure to have this tool in place will add

significant cost, time, complexity and uncertainty to Brownfields

development.

Download the proposed regulations, standards and technical

documents from EBR Posting No. 010-4642 (at www.ebr.gov.on.ca).

Class Action : SCC finds industry liable despite regulatory

approval

The Supreme Court of Canada upheld a Quebec class action

brought by neighbours of a St. Lawrence Cement facility for causing

odour, noise dust "annoyance" to neighbours. The company

was held liable for damages even though it was established in the

neighbourhood by a special provincial statute in 1952.

Neighbours complained for years, and eventually launched a class

action lawsuit that took more than a decade to reach the Supreme

Court. The decision in St. Lawrence Cement Inc. v.

Barrette, (2008) SCC 64, was released on November 20,

2008. The SCC based liability in this case on Article 976 of

      Quebec's Civil Code. It prohibits owners of land from imposing

      abnormal or excessive annoyances on neighbours. The SCC described

      this article as imposing "no-fault" liability.

      This decision will be followed in Canada's common law

      provinces. The Supreme Court's analysis included a comparative

      review of Canadian common law and French civil law. The SCC found

      that "in both these legal systems, a scheme of no-fault

      liability in respect of neighbourhood disturbances is accepted in

      one form or another."

      The SCC distinguished its 2001 refusal to certify a nuisance

      class action in Hollick v. City of Toronto, seemingly on

      the basis that the plaintiffs in St. Lawrence Cement Inc. v.

      Barrette defined the class of plaintiffs more strictly and

      provided the trial court with more persuasive evidence of their

      "injury".

      Court of Appeal denies Lafarge - Cement company to abandon bid

      to burn tires

      In late November the Ontario Court of Appeal refused leave

      to appeal a Divisional Court decision that upheld neighbours'

      rights to challenge Lafarge's certificate of approval to burn

      municipal waste and used tires in its Bath, Ontario cement kiln. In

      response, Lafarge announced that it will abandon the proposal.

      Opposing neighbours announced their intention to seek recovery of

      their costs of preparing for the aborted ERT appeal that was

      abandoned.

      We reported on the Divisional Court decision in our August 2008

      issue. The Divis ional Court upheld the Environmental Review

      Tribunal (ERT) decision granting neighbours leave to appeal the

      MOE's decision to issue the...