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Volume 15, No. 3 - April/Avril 2006
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Message from the ChairSarah Powell*
At the provincial level, the MOE's main working group recently wrapped up its consultation process on the environmental penalties regulations required to implement the key provisions of the Environmental Enforcement Statute Law Amendment Act. Draft regulations are expected to be released shortly and we look forward to receiving your comments on these important regulations. We also would like to hear your thoughts on Bill 43, the proposed Clean Water Act, 2005. A roundtable discussion on Bill 43 is being organized with the Municipal Law Section for early fall. We plan to have the discussion by way of a teleseminar, so that we can gather as many comments from across Ontario as possible. Bill 69, the proposed Regulatory Modernization Act, 2006, is also of interest to our members and is discussed in this edition. Again, we encourage you to provide us with your comments on Bill 69. Finally, we hope to see you out at our upcoming evening program on May 16, 2006. * Sarah Powell, Davies Ward Phillips & Vineberg LLP, (416) 367-6931, spowell@dwpv.com. Federal and Provincial Governments Consolidate Air Reporting InitiativesStacey Parker-Yull* O. Reg. 127/01, Airborne Contaminant Discharge Monitoring and Reporting, was amended by O. Reg. 37/06 on February 15, 2006. This was a first step, according to the Ministry of the Environment (MOE), toward harmonizing the provincial air emissions reporting system with the federal air emissions reporting system. O. Reg. 127/01 was amended by removing approximately 280 contaminants that were already required to be reported to Environment Canada (EC) through the National Pollutant Release Inventory (NPRI) program. Further, 55 of the 70 remaining contaminants were removed from O. Reg. 127/01, since these 55 substances were determined to pose minimal risk to the environment and human health, according to the Joint O. Reg. 127/NPRI Stakeholder Work Group. Thus, only 15 airborne contaminants require reporting under O. Reg. 127/01 after this recent amendment. The amendment to O. Reg. 127/01 does not, of course, change the NPRI reporting requirements. The amendment also removed several other duplicative reporting requirements. For example, it removed the smog season and quarterly reporting requirements under O. Reg. 127/01, which must be provided under the NPRI program. Similarly, the special reporting rules for certain types of facilities (such as universities, colleges, office buildings, hotels and shopping centres) were removed because the NPRI program requires the same level of information regarding these types of facilities. Further, the special reporting requirements regarding the type of energy source and the amount of electricity produced by electricity generating facilities were removed because they will continue to be required under O. Reg. 397/01, the Emissions Trading regulation. The MOE is pursuing an administrative agreement with the federal government, through the development of a Memorandum of Understanding (MOU), to facilitate various intergovernmental details of current and future harmonization initiatives. The above changes apply to the reporting of 2005 data (to be reported by June 2006). However, O. Reg. 127/01 was further amended to include a transition provision (section 14) that permits a report on the air emissions of a contaminant during 2005 to be prepared in accordance with the regulation before or after the transition provision came into force. All reporting by Ontario facilities, whether required under O. Reg. 127/01 or the NPRI program, will be through OWNERS – the One Window to National Environmental Reporting System, operated by EC. According to the MOE, the harmonization of the air emission reporting requirements is expected to save about 4,000 facilities more than an estimated total of $2 million annually, as well as considerable time and effort in reporting air emissions. Note that, from reporting year 2005 onward, all Ontario airborne emissions data, including those reported under the authority of O. Reg. 127/01, will be available to the public through the NPRI. According to the MOE, the long-term goal of the harmonization process is for EC to include in the NPRI the remaining substances from O. Reg. 127/01 that are of interest to EC. In fact, national consultations have already begun on the possibility of EC incorporating Ontario’s reduced list of substances into the NPRI. If EC, through the NPRI program, includes an adequate number of the remaining Ontario-specific substances, the MOE may consider rescinding O. Reg. 127/01. In the meantime, EC has agreed to accept emission reports from Ontario-based facilities on the 15 Ontario-specific contaminants under Ontario’s legal authority. * Stacey Parker-Yull is an articling student at Torys LLP, (416) 865-8165, sparker-yull@torys.com. New Powers for Conservation Authorities to Regulate Development in Wetlands and Sensitive AreasKristi Ross* On May 1, 2006 Conservation Authorities (CAs) across Ontario will have new powers to regulate development in or near wetlands, shorelines, watercourses, escarpment areas, valley lands and flood plains. The scope of the regulatory powers includes not only flood control, but also erosion and pollution control in these sensitive areas. There is considerable background to this May implementation date. In particular, the May 2006 implementation date marks the culmination of a number of changes to the Conservation Authorities Act (CAA) and Regulations that started approximately 10 years ago. Two years ago on May 1, 2004 the Province issued Ontario Regulation 97/04, entitled, Content of Conservation Authority Regulations under Subsection 28(1) of the Act: Development, Interference with Wetlands and Alteration to Waterways Regulation, but also known as the Generic Regulation. This regulation requires that all 36 CAs revise their existing “Fill, Construction and Alteration to Waterways” regulations1 (the “Former Regulations”) to conform with the requirements of the Generic Regulation and that each CA submit these local regulations to the Minister of Natural Resources for approval before May 1, 2006. While the Generic Regulation does not propose an entirely new scheme of regulation, it is much broader in scope than the Former Regulations. The purpose of the Generic Regulation is to provide consistency in key terminology and policy intent between the Provincial Policy Statement (PPS) governing natural hazards, development and site alteration under the Planning Act and the CAA. A further purpose, as stated by the Ontario government, is to ensure consistency with the general policy direction of the 2005 PPS to manage resources in a sustainable way and protect public health and safety. Subsection 28(1) of the CAA permits, subject to the approval of the Minister, an authority to make regulations: prohibiting, regulating or requiring the permission of the authority for straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse, or for changing or interfering in any way with a wetland and prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development. In furtherance of subsection 28(1), the Generic Regulation allows CAs to regulate the following activities:
This mandate of the Generic Regulation is broader in scope than that found in the Former Regulations. Pursuant to the broad definition of “development” in subsection 28(25) of the CAA, the new Generic Regulations will prohibit development activities in regulated areas, unless it can be shown that the development will not affect the control of flooding, erosion, dynamic beaches, pollution or the conservation of land. Development is defined as:
The “regulated areas” in the Generic Regulation include: hazardous lands (land that could be unsafe for development because of naturally occurring processes associated with flooding, erosion, dynamic beaches or unstable soil or bedrock); wetlands including swamps, marshes, bogs, fens and ponds; river or stream valleys (whether or not they contain a watercourse) and lake shorelines that may be affected by flooding, erosion or dynamic beach hazards. In addition to this list, subsection 28(5)(e) of the CAA allows the Minister to permit the regulation of ‘other areas’ where, in the opinion of the Minister, development should be prohibited or regulated or should require the permission of the authority. The Generic Regulation does not represent an absolute prohibition on development within regulated areas, by virtue of the ability of a CA to approve a development, with or without conditions, if, in the authority’s opinion, the control of flooding, erosion, dynamic beaches, pollution or the conservation of land will not be affected by the development (section 4 of O. Reg. 97/04). In addition, all Generic Regulations made by local CAs must prohibit the straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse, or for changing or interfering in any way with a wetland without permission from the CA (section 5, O. Reg 97/04). The local regulations must also state that a permit can be granted with or without conditions (section 6), outline the information that must be submitted in an application for a permit (subsection 7(a)), the maximum period of validity of a permit (24 months), and describe the circumstances in which the validity of a permit may be extended (subsection 7(b)). Regulations must also provide for a hearing before the Ontario Mining and Lands Commissioner if a permit is to be cancelled (section 8). A permit obtained from a CA does not replace a building permit or other planning approvals. In many cases a developer will need to obtain a permit from a CA, a building permit and the required Planning Act approvals. An important change in the Generic Regulation is the inclusion of wetlands as regulated areas. “Wetland” is defined in subsection 28(25) of the CAA and includes land that: (a) is seasonally or permanently covered by shallow water or has a water table close to or at its surface, (b) directly contributes to the hydrological function of a watershed through connection with a surface watercourse, (c) has hydric soils, the formation of which has been caused by the presence of abundant water, and (d) has vegetation dominated by hydrophytic plants or water tolerant plants, the dominance of which has been favoured by the presence of abundant water, but does not include periodically soaked or wet land that is used for agricultural purposes and no longer exhibits a wetland characteristic referred to in clause (c) or (d). This broad definition provides CAs with significant authority to regulate wetlands, as it extends beyond wetlands classified as provincially significant and wetlands within or associated with flooding and flood plains. As part of the development of a local Generic Regulation, each CA is required to map and delineate the regulated areas in their CA and create a written regulation which describes the regulated areas and activities, the permit approval process and which refers to the mapping. The text prevails in the case of a conflict between the regulated area described in the text regulation and the maps delineating the regulated area. Maps can be amended and corrected without a formal amendment to the regulation. At the time of writing, one CA has received approval for its regulation from the Minister of Natural Resources: O.Reg.42/06. This regulation concerns the Central Lake Ontario Conservation Authority and is entitled, “Regulation of Development, Interference with Wetlands and Alterations to Shorelines and Watercourses.” * Kristi Ross is an associate at Birchall Northey LLP, (613) 842-7464, kr@birchallnorthey.com. 1 Each CA currently has in place its own “Fill, Construction and Alteration to Waterways” regulation. All of these regulations regulate the construction of any building or structure near a pond, swamp or in any area susceptible to flooding under a regulatory storm event, the placing or dumping of fill, or the straightening, interference or diverting of a river, creek, stream or watercourse, in a manner that addresses the issues and challenges faced by each CA. Bill 69 – The Regulatory Modernization Act, 2006 – New Enforcement Tools to Ensure Business Compliance in OntarioDan Kirby* and Anik Lalonde-Roussy** On February 27, 2006, the Ontario government introduced Bill 69, the Regulatory Modernization Act, 2006. The stated purpose of the Bill is to increase cooperation and information sharing between various ministries to better enforce and ensure compliance of businesses with the laws of Ontario. Although Bill 69 was introduced by the Minister of Labour, it will affect a number of other ministries and regulatory agencies, including the Ministry of the Environment and the Ministry of Natural Resources. If passed, this new legislation will permit the sharing of specified information and observations between various regulatory agencies and ministries, as well as the publication of certain types of collected information. It will permit the designation of individuals to exercise functions under more than one regulatory scheme. Finally, on sentencing, it will allow a court to consider convictions under multiple regulatory schemes. Information Sharing Currently, a number of statutes, including the Environmental Protection Act (EPA), effectively prohibit the sharing of information between various regulatory agencies and ministries. Bill 69 proposes to change this by permitting the collection, use, sharing and disclosure of certain types of business information. This includes information about the organization (name, address, etc.), statistical information about the organization and the sector or industry in which it operates as well as compliance information relating to matters such as approvals, complaints, inquiries, orders, notices, convictions and penalties. Although the term “organization” is not specifically defined, it presumably includes corporations, partnerships, unincorporated associations and joint ventures. With respect to an individual owner, officer or director of an organization, certain personal information and compliance information could also be disclosed. This information may be collected, used, shared or disclosed only for purposes listed in the Bill, such as verifying the accuracy of records, compiling compliance information, determining entitlement to an approval, planning and conducting an inquiry, assisting with administrative or sentencing proceedings and making specified information available to the public. The authority to share information will apply to the above-noted types of information even if the information was collected prior to the coming into force of the Bill or if the information was collected under a particular legislation prior to the designation of that legislation for the purposes of the Bill. Although the proposed sharing of information might increase efficiency within government, it does raise some questions. What if one regulatory scheme does not allow certain information to be collected, but this information is then obtained through the sharing of information collected under a different regulatory regime where collection of the information is permitted? Will this result in organizations being more careful about the information they give in voluntary and involuntary disclosures? Sharing of Observations Under Bill 69, if a person with authority under one regulatory scheme observes something that is relevant to another regulatory scheme, such as a breach, that person may disclose that observation to another person with authority to enforce the other regulatory scheme. It should be noted that the observation may be shared with enforcement authorities under any other act or regulation, whether or not the act or regulation is specifically designated in the Bill. For example, if a Sector Compliance Branch team (formerly called Environmental SWAT team) inspects a facility and observes containerized chemicals inside a building that are stored together where they should not be (e.g., they may be chemically incompatible) and concludes that there is no breach of environmental legislation but that there may be an issue under occupational health and safety legislation, the observation may be disclosed to the Ministry of Labour. Publication of Information Bill 69 not only permits information to be shared between ministries or regulatory agencies, but it also authorizes the publication (including on the Internet) of certain statistical and compliance information about an organization. The proposal permits such disclosure even if the information was collected prior to the coming into force of the Bill or if the information was collected under a particular legislation prior to the designation of that legislation for the purposes of the Bill. Multiple Authorizations Under the proposed legislation, ministers may authorize a single person or a class of persons to exercise functions under more than one act or regulation. This raises questions as to whether the person working under multiple regimes will have the proper qualifications for each regime under which he or she will be appointed. Also, by bundling regulatory schemes in this way, it may result in some schemes being ignored. Sentencing Courts have traditionally only considered prior convictions under the same or similar regulatory schemes in determining the severity of the penalty. Bill 69, however, will permit a court to consider a defendant’s previous convictions under other unrelated regulatory schemes in determining the appropriate sentence. For example, if a prosecutor believes that a previous conviction under the Occupational Health and Safety Act is relevant in the sentencing of a defendant for an offence under the EPA, he or she may request the court to consider the previous conviction as an aggravating factor. On imposing the penalty, the court must indicate whether it is imposing a more severe penalty having regard to the previous conviction. If the court decides that the previous penalty does not justify a more severe penalty, it must give reasons for that decision. A court may be asked to consider convictions from both before and after the coming into force of Bill 69. In addition, the other regulatory schemes under which the previous conviction may have occurred do not have to be designated by the Bill. Conclusion The new legislation may be justifiable from a public policy perspective, both in terms of protection of the public, employees and the environment and in terms of efficiency in enforcement by various ministries and regulatory agencies which have stretched resources. However, some aspects of this new legislation raise potential issues, especially with respect to sentencing and the retroactive effect of certain provisions. Bill 69 received first reading in February 2006. As the Bill goes to committee, it will be important for lawyers and stakeholders to make their views known to ensure that the final legislation is both fair for organizations and pursues the objective of improving public protection. * Dan Kirby is a partner at Osler, Hoskin & Harcourt LLP, (416)
862-6661, dkirby@osler.com. Case Comment: Croplife Canada v. Toronto (City)1Joanna Rosengarten* In late 2005, the Supreme Court of Canada dismissed Croplife Canada’s (“Croplife”) appeal of the Ontario Court of Appeal decision which upheld the City of Toronto’s right to enact a by-law restricting the non-essential use of pesticides. By refusing to hear Croplife’s appeal, the Supreme Court of Canada acknowledged that section 130 of Ontario’s Municipal Act, 2001 gives municipalities broad powers to pass by-laws for the health, safety and well-being of its inhabitants so long as there is no other specific by-law making power on the matter in question under that or any other Act. The City of Toronto enacted the pesticides by-law in May, 2003 under section 130 of the Municipal Act, 2001. Section 130 reads:
Section 130 excludes the power to legislate with respect to matters that are specifically provided for elsewhere in the Municipal Act, 2001 or in any other Act. Croplife, a trade association which includes pesticide producers, challenged the pesticide by-law on the basis that the legislation should be interpreted narrowly, arguing that the by-law was not authorized under section 130. Croplife also argued that the municipality could not enact the pesticides bylaw, as pesticides were already regulated by other acts, namely the federal Pest Control Products Act,2 with respect to the importing, manufacturing and labelling of pesticides, and the Ontario Pesticides Act,3 with respect to the storage of pesticides and licensing of commercial applicators and exterminators.4 The Ontario Court of Appeal canvassed the law regarding the interpretation of municipal powers, concluding that since the early 1990’s, courts had begun to move towards a broad and purposive approach to municipal powers, with deference and respect for the decisions of locally elected officials. Feldman J., speaking for a unanimous court, stated that “…the jurisprudence from the Supreme Court is clear that municipal powers, including general welfare powers, are to be interpreted broadly and generously within their context and statutory limits, to achieve the legitimate interests of the municipality and its inhabitants.”5 Applying the broad and generous approach to the interpretation of section 130, the Court of Appeal found that the City of Toronto did have the power to enact the pesticides by-law—the purpose of the by-law fell within the authority granted by section 130 and there was no specific municipal power to regulate pesticide use elsewhere in the Municipal Act, 2001. The Court then applied the “impossibility of dual compliance” test6 and found that it was not impossible to comply with the city’s pesticides by-law while at the same time complying with the requirements of the federal and provincial pesticides legislation. Furthermore, the pesticides by-law did not frustrate the purpose of Parliament or of the Ontario legislature in enacting the Pest Control Products Act and the Ontario Pesticides Act. The Ontario Court of Appeal’s reasoning and the Supreme Court of Canada’s refusal to hear the appeal confirm the recent trend of Canadian Courts to interpret municipal powers generously, in a broad and purposive fashion. The decisions confirm that the City of Toronto has the power to regulate the use of pesticides, and open the door for other municipalities to enact legislation limiting the use of such chemicals. It will be interesting to see the extent to which municipalities in the future use section 130 to enact by-laws for the purpose of protecting the environment and, therefore, the health and well-being of those living within their boundaries. * Joanna Rosengarten is an associate at McCarthy Tétrault LLP, (416) 601-7556, jrosengarten@mccarthy.ca. 1 Croplife Canada v. Toronto (City), 75 O.R. (3d) 357, [2005] O.J. No. 1896 (Ont. C.A.). 2 R.S.C. 1985, c. P-9. 3 R.S.O. 1990 c. P.11. 4 It was conceded that the Municipal Act, 2001 did not contain any other provisions regarding the use of pesticides. 5 Croplife, supra note 1 at p. 373. 6 This test is described in Croplife, supra note 1 at p. 377. Proposed Amendments to the Clean Air Act by the United States' Environmental Protection AgencyJulia Schatz* and Damienne Lebrun-Reid** "Smog does not respect international borders, neither do the ill effects…”.1 The above quote was included as part of joint submissions filed on February 17, 2006 by the Ontario Ministry of the Environment and the Ministry of the Attorney General with the United States’ Environmental Protection Agency (“EPA”) in respect of its proposed amendments to the Clean Air Act (the “Act”).2 This article provides a brief overview of the New Source Review (“NSR”) Permitting Program (the “Program”) established under the Act, the EPA’s proposed amendments to the Program and their potential impact. It comments on a recent ruling of the United States Court of Appeals in the District of Columbia on previously proposed changes to the Act and concludes by briefly examining the Response by the Ontario Government to the current amendments. The New Source Review Permitting Program The EPA is responsible for researching and setting national standards for a variety of environmental programs, including the administration of all processes established under the Act. The purposes of this statute, originally passed by the United States Congress (“Congress”) in 1963 and entirely rewritten in 1970, are to “protect and enhance the quality of the Nation’s air resources” and “to promote the public health and welfare.”3 As part of the 1977 amendments to the Act, Congress established the NSR Program. This is a pre-construction permitting program whose purpose is, among others, to ensure that air quality is not significantly degraded by the addition of new and modified factories, industrial boilers and power plants. To accomplish its goals, the NSR requires stationary sources of air pollution4 to obtain permits before they start construction. There are currently three types of NSR permitting requirements:
NSR permits generally specify the type and extent of construction that is permitted, the emission limits that must be met and the manner in which the emissions source must be operated. The NSR program covers both the construction of new major emitting industrial facilities and major modifications to existing facilities that will significantly increase pollution emissions at those facilities. For the most part, a permit will only be issued by the NSR if the new plant or major modification includes pollution control measures that reflect the best pollution-control technology available. The 1977 NSR rules included a grandfather provision. This provision exempted existing facilities from the strict pollution control requirements that all new operations had to meet under the NSR. The assumption was that older, high-emitting sources would gradually be upgraded as grandfathered facilities made changes or were replaced by new facilities. The exception for these facilities ends when the facility is physically modified in a manner that significantly increases its emissions. When this occurs, NSR is triggered and the facility is required to install modern pollution controls. Proposed Amendments to the NSR Permitting Program 9 In October 2005, the EPA proposed changes to its NSR permitting program, particularly, to the emissions test used to determine if a physical or operational change at a power plant would cause emission increases that would require the plant to install additional pollution controls. The EPA claimed that the proposed changes were necessary to make the program more compatible with other existing programs and to ensure nationwide consistency in its implementation. As such, it is aiming to establish a national, standardized emissions test. The EPA has stated that these proposed amendments are the result of a June 15, 2005 decision of the Fourth Circuit Court of Appeals in the case of U.S. v. Duke Energy Corporation (“Duke Energy”),10 which involved an EPA enforcement action under the Act. The issue before the court was whether refurbishment activity undertaken at an existing facility (namely, redesigning boiler tube assemblies in their coal-fired generating units and a concomitant extension of the hours of operation) could be deemed to constitute a major modification under the Act, thereby triggering NSR permitting requirements. The unanimous decision of the court was that the term “modification” had been interpreted differently by the EPA under different regulations passed by it. The court determined that the definition of modification to be used by the EPA was that which defined it as a project that increases a plant’s hourly rate of emissions. Thus, an increase in the number of hours the plant operated would not constitute a modification and, therefore, the NSR permitting requirements would not be triggered. In obiter, the court suggested that the EPA retains its authority to amend and revise this and other regulations through the exercise of appropriate rule making powers.11 Other courts, including the D.C. Circuit Court of Appeals, being the court with jurisdiction to review all nationally applicable regulations created under the Act, recently stated that it was not convinced by the industry argument that the Duke Energy test was correct.12 Several environmental groups filed a petition for certiorari (a request for appeal) with the U.S. Supreme Court on December 28, 2005. The court has not yet released its decision in respect of this request. In the Fall of 2005, the EPA proposed rule changes to the manner in which emissions are measured. The current EPA air pollution measurement system applies an actual annual emission standard, whereas the proposed amendment would result in a new emissions test for the NSR based on a theoretical maximum hourly emission standard, which was the definition accepted in Duke Energy. This change may impact whether or when the NSR is triggered. Commentators argue that, in proposing these changes, the EPA has taken the obiter comments in the Duke Energy decision as an opportunity to review the approach that the utility industry supports.13 The Impact of the Proposed Amendments Under the new test, plants may be able to make major changes to their operations, operate their equipment longer hours and increase their emissions by thousands of tons per year without pollution controls or analysis of the impacts on air quality, including prevention of significant deterioration increments. The NSR will not apply and the facility will be able to make the changes it desires without the knowledge of the permitting authority or the public.14 Ontario has projected that this lack of control will result in the lost possibility to reduce millions of tons of air pollution.15 The failure to enforce NSR against the coal-fired utilities will mean that the grandfather clause may last substantially longer than originally thought and air quality may continue to deteriorate.16 Recent Case Law Comes Down Against the EPA On March 17, 2006, the United States Court of Appeals for the District of Columbia Circuit, determined that proposed changes by the EPA to a clean air regulation introduced in October 2003 (which were stayed in December 2003) were in violation of the Act. The changes in issue at that time would have allowed older power plants and other facilities to modernize without having to install expensive pollution controls, even if the changes resulted in higher emissions. In particular, the rules would have broadened the EPA’s interpretation of “routine maintenance” for older plants by permitting the facilities to avoid the need for emissions-cutting devices if they spent less than 20 percent of the plant’s value.17 A statement by New York State Attorney General Eliot Spitzer noted that, while this decision was a “major victory for clean air and public health”, there are “continuing threats to enforcement of the Clean Air Act, which the administration and EPA have repeatedly sought to undermine.” In his view, the court's recent ruling should be taken as a “reaffirmation of the act’s vitality” and should cause the administration to “reconsider its course.”18 Ontario's Response19 A similar message regarding the need for reconsideration of the EPA’s course was delivered by the Ontario Ministry of the Attorney General and the Ministry of the Environment in February 2006 when Ontario commented on the proposed EPA rule changes. The Ministries jointly claimed that the proposed changes will undercut the NSR program which, according to the EPA’s own analysis, has eliminated more than 650,000 tons of air pollution from the United States. The Government submissions20 indicate that the resulting deterioration of the advances made to control power plant emissions is of particular concern to Ontario because:
Conclusion The NSR process aims to protect the public from air pollution generated by approximately 17,000 large industrial facilities in the United States. If allowed to take effect, the proposed rule changes may allow industrial facilities to increase air pollution without meeting the pollution control requirements currently in place. Given the Ontario Government’s claim that the United States is a major contributor to Ontario’s air pollution, the impact of the proposed amendments is all the more notable for the people of Ontario.22 * Julia Schatz is a partner at Bennett Jones LLP, (416) 777-4665,
schatzj@bennettjones.ca. 1 Ontario Ministry of the Environment, Media Backgrounder, “Support for Ontario Filing Comments with the United States Environmental Protection Agency” (February 17, 2006) online: <http://www.ene.gov.on.ca/envision/news/2006/021701mb2.htm>. 2 42, U.S.C. (1955) 7401 et seq. (1955) (“Clean Air Act”). 3 Clean Air Act, ibid at 7401(b)(1). 4 A stationary source of air pollution refers to an emission source that does not move (i.e., utilities, chemical and manufacturing industries). Typically, a stationary source is a large emitter which releases relatively consistent qualities and quantities of pollutants. 5 The EPA defines a “major source” to be: "[in a nonattainment area], any stationary pollutant source with potential to emit more than 100 tons per year. In PSD [Prevention of Significant Deterioration] areas the cutoff level may be either 100 or 250 tons, depending upon the source.” See generally: US Environmental Agency, “Terms of Environment: Glossary, Abbreviations and Acronyms”, online: http://www.epa.gov/OCEPAterms/aterms.html (“Terms of Environment”). 6 The EPA defines “attainment area” to be: “an area considered to have air quality as good as or better than the national ambient air quality standards as defined in the Clean Air Act.” Terms of Environment, ibid. 7 Area that does not meet one or more of the National Ambient Air Quality Standards for the criteria pollutants designated in the Clean Air Act. 8 New emissions sources or modifications to existing emissions sources that do not exceed NAAQS (National Ambient Air Quality Standards) emission levels. 9 See generally: US Environmental Agency, online: <http://www.epa.gov/nsr/actions.html>. 10 411 F. 3d 539 (4th Cir 2005), leave to appeal to Sup. Ct. requested (“Duke”). 11 Duke, ibid at 550. 12 New York v. United States EPA, U.S. App. D.C. 3 (2005) at para 36. 13 National Resource Defence Counsel, Press Release, “Data Shows Industry had Extensive Access to Cheney's Energy Task Force” (21 May 2002). 14 John Paul (State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials), “Testimony on the U.S. Environmental Protection Agency’s Proposed Rule on Prevention of Significant Deterioration, Nonattainment New Source Review, and New Source Performance Standards: Emissions Test for Electric Generating Units” (December 9, 2005), online: <http://www.rapca.org/publications/Testimony/NSRfinalreviewed%20EGU%20TESTIMONY12-8.pdf>. 15 L. Broten & M. Bryant, The Province of Ontario, “Prevention of Significant Deterioration, Nonattainment New Source Review, and New Source Performance Standards: Emissions Test for Electric Generating Units” (February 17, 2006), online: <http://www.ene.gov.on.ca/envision/air/transboundary/fullNSRcomments.pdf> (“Prevention”). 16 Prevention, ibid. 17 Mark Johnson “EPA thwarted in bid to ease pollution rules” The Globe and Mail (17 March 2006) online: The Globe and Mail <http://www.theglobeandmail.com/servlet/story/RTGAM.20060317.wenvi0317/EmailBNStory/Science/> 18 Office of New York State Attorney General Eliot Spitzer, Press Release, “Statement by Attorney General Eliot Spitzer regarding a Federal Court Decision Upholding the Clean Air Act” (17 March 2006) online: <http://www.oag.state.ny.us/press/2006/mar/mar17b_06.html>. 19 Prevention, supra note 15. 20 Prevention, supra note 15. 21 The Ontario government has promised to close its four remaining coal-fired plants in an attempt to reduce air pollution. The Thunder Bay, Atikokan and Lambton stations are scheduled to close by the end of 2007 and Nanticoke is scheduled to close in early 2009. 22 According to the submissions of the Ontario Government, emissions from sources in the United States are responsible for between 50% and 90% of the air pollution that blankets Toronto on smog days. PublicationsMultimedia ProductsSection Executive 2005-2006Chair: Sarah V. Powell Past Chair: Jonathan W. Kahn 1st Vice Chair: Marc McAree 2nd Vice Chair: Cara L. Clairman Secretary (Sections): Katie Gwen Goldberg Newsletter Editor: Stacey Ferrara CLE Liaison: Carolyn R. Shaw Member-At-Large: Aaron Edward Atcheson Member-At-Large: Catherine P. Beaudoin Member-At-Large: Janet Bobechko Member-At-Large: Chantelle J. Bryson Member-At-Large: Rosalind H. Cooper Member-At-Large: Paul Thomas Draycott Member-At-Large: Tamara Farber Member-At-Large: Sean D. Love Member-At-Large: Dennis Mahony Member-At-Large: Marc Carson McClean Member-At-Large: Jonathan Mitchell Myers Member-At-Large: Ramani Nadarajah Member-At-Large: Harry Poch Member-At-Large: Joanna Maria Rosengarten Member-At-Large: Kristi Martha Ross MOE Liaison: Kristi Ann Rowe Member-At-Large: Dianne Saxe, Ph.D. Member-At-Large: Mimi Singh Member-At-Large: Scott Stoll Member-At-Large: Gray E. Taylor Member-At-Large: Barry M. Weintraub Member-At-Large: Frank J. Zechner Staff Liaison: Blossom Pangowish |
Welcome
to the spring edition of Environews. While lots happened on the
environmental front over the winter months in Ontario, most eyes are currently
trained on the new federal government's emerging climate change plan. Early
reports trickling out of Ottawa suggest that the government's "Made in Canada
Plan" regarding climate change will include a new Canadian Clean Air
Act. Let's hope that the "Made in Canada" solution demonstrates the needed
leadership to address Canada's poor performance to date on reducing air
pollution and greenhouse gas emissions. In my view, regulatory clarity on these
issues is urgently needed (and wanted) by all Canadians - including industry -
to protect the health of Canadians and preserve our natural capital. A quick
read of recent reports like the Millennium Ecosystem Assessment and Maple
Leaf in the OECD only underscores this urgency.