40-HOUR HAZARDOUS WASTE OPERATIONS & EMERGENCY RESPONSE COURSE Haz Mat Industrial Technician.
D.Saxe Haz Mat West 2012 Handouts
30
101012 1 Shared Authority, Shared Risk Western Canadian HAZMAT Conference 2012 Dianne Saxe, Ph.D. in Law Saxe Law Office envirolaw.com Outline • Shared Authority: • Prov. v. munic.: bylaws • Fed. v. prov: insolvency • Fed. v prov: EA • Shared risk • Enviro West v. Copper Mountain 2 Saxe Law Office
description
keynote address to the Western Canada Hazmat conference, October 10, 2012, Saskatoon, on shared authority and shared risk, controversial areas in environmental law
Transcript of D.Saxe Haz Mat West 2012 Handouts
10-‐10-‐12
1
Shared Authority, Shared Risk Western Canadian HAZMAT Conference 2012
Dianne Saxe, Ph.D. in Law Saxe Law Office envirolaw.com
Outline
• Shared Authority: • Prov. v. munic.: bylaws • Fed. v. prov: insolvency • Fed. v prov: EA • Shared risk • Enviro West v. Copper Mountain
2
Saxe Law
Office
10-‐10-‐12
2
Shared authority: by-laws
• If fed / prov allows something, when can municipality say no? • Creatures of the province • No constitutional status Sa
xe Law
Office
3
Spraytech v Hudson
• Landmark decision, 2001 • Town banned cosmetic uses of pesticides • Federal and provincial permits • General “health and welfare” power
Saxe Law
Office
4
10-‐10-‐12
3
So what else can munic do?
• Keep hog manure away from municipal wells? Peacock • Make greenhouses use cleaner fuel? Darvonda v. GRVD • Close licenced landfill? Northland Material v. Parkland • Stop fracking? Sludge spreading?
Saxe Law
Office
5
Province sets ground rules
• Provincial statutes can block bylaws: • e.g. Peacock: NMA: No bylaws on same subject maYer
• Or empower them • e.g. Northland – landfill needed all other permits • Darvonda – air permits on terms
Saxe Law
Office
6
10-‐10-‐12
4
If province is vague or silent?
• Do the bylaws “frustrate or displace” a senior gov’t regulatory scheme? • “pith and substance” • Regulation is safer than prohibition • Must be tied to specific local impacts
Saxe Law
Office
7
More by-laws soon?
• E.g. By-‐‑law on fracking? • Probably can’t ban outright • Probably can limit toxic substances, esp near vulnerable aquifers • Air pollution?
Saxe Law
Office
8
10-‐10-‐12
5
Outline
• Shared Authority: • Prov. v. munic.: by-‐‑laws • Fed. v. prov: insolvency • Fed. v prov: EA • Shared risk • Enviro West v. Copper Mountain
9
Saxe Law
Office
Key conflicts
• Can contamination be abandoned through CCAA / BIA? • When is the MOE just a creditor? • Is a cleanup order a “claim”? • Can MOE force cleanup by: • Successors? • Officers & directors? • Related companies?
Saxe Law
Office
10
10-‐10-‐12
6
Environmental Protection
Bankruptcy / insolvency
Jurisdiction Provincial Federal Goal • Environmental
protection • Cleanup of spill,
contamination, waste etc.
• Preserve debtor assets for the benefit of the creditors.
• Forgive unpaid debt • Ensure bankruptcies /
insolvencies are administered fairly.
Subject to Orders
• Past / present “care, management and control”.
• Responsible parties, directors & officers, related companies, innocent owners.
• Debtor (Bankrupt /insolvent)
• Creditor
Saxe Law
Office
11
BIA / CCAA special priority
• Environmental regulator has first claim on polluting site and adjacent land • For other assets, unsecured creditor • BIA 14.06; CCAA 11.8
Saxe Law
Office
12
10-‐10-‐12
7
Three active cases
• Re Northstar Aerospace • Re Nortel Networks Corporation (CA) • Nfld. & Labrador v. AbitibiBowater (SCC) Sa
xe Law
Office
13
Example: Northstar
• 25 years of plating plus big chromic acid spill • Spent $20M, went into CCAA • Now bust • TCE (carcinogen) in 152 homes • Urgent health risk w/o controls
Saxe Law
Office
14
10-‐10-‐12
8
Northstar
• Cambridge plant abandoned • Escheat? • Other assets to secured creditors • MOE tried to block the sale, or to hold $14M for cleanup • Taxpayers now paying
Saxe Law
Office
15
SCC: Nfld. v. AbitibiBowater
• AbitibiBowater >100 years in Nfld: • Mining; • Pulp and paper; • Shipping; and • Logging camps • Head office in Quebec
Saxe Law
Office
16
10-‐10-‐12
9
2008…
• Abitibi announces closure of its last Nfld plant. • Nfld Abitibi-‐‑Consolidated Rights and Assets Act expropriates lands and assets, without compensation. • Some are contaminated.
Saxe Law
Office
17
2009…
• Abitibi applies to restructure remaining assets under Companies’ Creditors Arrangement Act (CCAA) • Quebec Court issues Claims Procedure (CP) Order • All creditors to file proofs of claim by claims bar date. If not, claims are “forever” barred.
Saxe Law
Office
18
10-‐10-‐12
10
What’s a “claim”?
• [A]ny right or claim of any Person .. in connection with any indebtedness, liability or obligation of any kind whatsoever... including.. .any breach of duty (legal, statutory.. .or otherwise) ... which existed on the Canadian Filing Date
Saxe Law
Office
19
EPA Orders
• Then Nfld EPA issues 5 orders requiring: • Remediation plan for Abitibi’s contaminated sites; and • Remediation of these sites. • Are they a “claim”?
Saxe Law
Office
20
10-‐10-‐12
11
EPA Orders
• S. 99 of Nfld. EPA • MOE can issue orders against a “person responsible” to remediate contamination. • Includes past and present owners of pollutants and those who had management or control of the pollutant.
Saxe Law
Office
21
Can Nfld enforce the orders?
• Nfld asked for a ruling that the EPA Orders could be enforced against the new Abitibi, despite the CP Order. • Argued that a statutory duty to remediate contaminated lands ≠ “claim”
Saxe Law
Office
22
10-‐10-‐12
12
CCAA Court: No
• EPA Orders compelled Abitibi to expend money to remediate property with liYle to no value to the company. • EPA Orders were financial in nature and should be treated as “claims”. • Province can’t jump the queue over other creditors.
Saxe Law
Office
23
Supreme Court of Canada
• Quebec CA: no leave to appeal • SCC: Granted Nfld leave to appeal. • Appeal argued in November 2011. • Still under reserve.
Saxe Law
Office
24
10-‐10-‐12
13
Provinces say:
• CCAA Court cannot relieve Abitibi, permanently, of its regulatory obligations. • Shifts costs of cleaning up Abitibi’s contamination to the Province. • Unconstitutional interference in provincial law.
Saxe Law
Office
25
Provinces say:
• Statutory duty to clean contamination is not like a commercial debt. • Province enforcing its laws ≠ creditor seeking payment of debt. • Panamericana
Saxe Law
Office
26
10-‐10-‐12
14
Abitibi says:
• No regulation of its ongoing operations • Abitibi not operating in Nfld anymore
Saxe Law
Office
27
Abitibi says:
• The EPA Orders are designed to jump the queue over other creditors. • Essentially financial • Therefore a “claim”
Saxe Law
Office
28
10-‐10-‐12
15
Abitibi says:
• Allowing orders to spend money would frustrate the “pith and substance” of the federal insolvency power • Avoid social and economic costs of liquidation
Saxe Law
Office
29
Abitibi says:
• Environmental obligations are just one of many. • Share the pain, balancing all claims Sa
xe Law
Office
30
10-‐10-‐12
16
Decision when?
• The SCC is still thinking
Saxe Law
Office
31
Implications
• Can companies shed environmental obligations through CCAA / BIA? • How much can be shifted to the Crown? • Insolvency? • Escheat? • How much already has?
Saxe Law
Office
32
10-‐10-‐12
17
Outline
• Shared Authority: • Prov. v. munic.: by-‐‑ laws • Fed. v. prov: insolvency • Fed. v prov: EA • Shared risk • Enviro West v. Copper Mountain
33
Saxe Law
Office
CEAA 2012
• Dramatic cuts to federal EA • Fewer • Faster • Narrower Sa
xe Law
Office
34
10-‐10-‐12
18
Fewer projects • Shift from “triggers” to limited “project list”. • The old Comprehensive Study list • Regulations Designating Physical Activities (RDPA) designated activities that may require assessment.
Saxe Law
Office
35
Even fewer
• Even those projects may not need federal EA • Provincial “equivalency”
Saxe Law
Office
36
10-‐10-‐12
19
Faster
• Short deadlines • Exclude many opponents • “direct interest” only • Narrower scope • Screenings instead of comprehensive studies?
Saxe Law
Office
37
Quick Deadlines
• Screening = 45 days • Minister’s decision whether to refer to a Panel = 60 days • EA by the CEA Agency = 365 days • EA by a Panel = 24 months • Minister will set project specific timelines for each phase of the Panel review.
• CNSC and NEB have their own timelines.
Saxe Law
Office
38
10-‐10-‐12
20
Assessment or screening?
• Must complete a “screening” if regulated by the CEA Agency. • Agency has broad discretion. • Applies to most projects in the RDPA.
Saxe Law
Office
39
Few mandatory assessments
• Must complete an EA assessment only for largest projects: • Regulated by the CBSC, NEB or a federal authority; or • Designated by Minister. • 7 of 39 activities in RPDA, like nuclear plants and major pipelines
Saxe Law
Office
40
10-‐10-‐12
21
Narrower
• Fewer environmental effects: • Change to fish and fish habitat, aquatic species, migratory birds; • Change to federal lands, another province, or outside Canada; • Changes to aboriginal health, socio-‐‑economic conditions, heritage, or current use of lands / resources.
Saxe Law
Office
41
Fisheries Act also slashed
• Protects fewer species • Less habitat • Ignores cumulative effects
Saxe Law
Office
42
10-‐10-‐12
22
But federal lands / permits?
• What is filling the gap where federal EA used to be? • Will provinces do more? • Federal departments • EIA? • Back to First Nations / the courts?
Saxe Law
Office
43
Outline
• Shared Authority: • Prov. v. munic.: bylaws • Fed. v. prov: insolvency • Fed. v prov: EA • Shared Risk • Enviro West v. Copper Mountain
44
Saxe Law
Office
10-‐10-‐12
23
Shared Risk
Enviro West Inc. v. Copper Mountain Mining • The generator: Copper Mountain Mining • The middle men: Canyon Electric and Boundary Electric • The hauler / receiver: Enviro West
Saxe Law
Office
45
Facts: The job
• Copper Mountain hires Canyon Electric to redo electric system • Canyon Electric hires Boundary Electric to dispose of transformer • Boundary Electric sub-‐‑contracts transformer job to Enviro West • Enviro West sends driver to empty the transformer
Saxe Law
Office
46
10-‐10-‐12
24
Facts: What oil?
• Askarel • Almost pure PCBs • Copper and Canyon know there are high PCBs • Boundary and Enviro West assume <50 ppb • Enviro West not in PCB business
Saxe Law
Office
47
Facts: Label, what label?
• Driver ignores warning signs and Askarel label • Pumps the PCBs into waste oil tanker truck and storage tank • Contaminates 91,000 litres of waste oil plus equipment
Saxe Law
Office
48
10-‐10-‐12
25
Facts: Cleanup cost
• Cleanup cost = $895,000 • Enviro West sues Boundary Electric, Canyon Electric and Copper Mountain
Saxe Law
Office
49
At Trial: Round 1
• Each defendant liable to Enviro West • Enviro West not negligent -‐‑ can’t expect too much of driver • Awarded $655,337 (plus costs)
Saxe Law
Office
50
10-‐10-‐12
26
Waste generator: 60%
• Copper Mountain failed to communicate the nature of the oil and its risks, and to ensure that Canyon did so too. • Enviro West or Boundary Electric would not have accepted the waste if properly warned
Saxe Law
Office
51
Middlemen: 20% each
• Canyon Electric failed to advise Boundary Electric that it: • Knew this was almost pure PCB-‐‑laden oil; or • Did not know the PCB content of transformer oil.
Saxe Law
Office
52
10-‐10-‐12
27
Middlemen: 20% each
• Boundary Electric failed to advise Enviro West that: • The transformer oil contained PCBs in excess of 50 ppm; • A PCB Report was available; and • Boundary Electric had not verified the PCB level in transformer oil.
Saxe Law
Office
53
Appeal: Round 2
• Wasn’t Enviro West also negligent? • BC Court of Appeal ordered trial judge to reconsider
Saxe Law
Office
54
10-‐10-‐12
28
Reconsideration: Round 3
• Enviro West was also negligent: • Failed to ask for test results; • Failed to train drivers about PCBs, warnings and labels; • No policies to ensure employees and middlemen knew their obligations
Saxe Law
Office
55
Everyone’s liable:
“Enviro West'ʹs primary failure concerned its failure to properly train and educate its staff. The resulting ignorance of its employees allowed both the driver and his supervising manager here to erroneously assume, without verification and with no proper regard for the warning signs, that since Boundary Electric was the middleman, the PCB level of the transformer oil would be within regulatory limits.
Saxe Law
Office
56
10-‐10-‐12
29
Shared liability
In my view, given its much superior information and its ability and duty to properly manage the hazardous waste in its control, Copper Mountain is equally blameworthy.”
Saxe Law
Office
57
Shared liability:
• Enviro West = 37.5% • Copper Mountain = 37.5% • Boundary Electric = 12.5% • Canyon Electric = 12.5% Sa
xe Law
Office
58
10-‐10-‐12
30
Outline
• Shared Authority: • Prov. v. munic.: bylaws • Fed. v. prov: insolvency • Fed. v prov: EA • Shared risk • Enviro West v. Copper Mountain
59
Saxe Law
Office
Questions?
Saxe Law Office
720 Bathurst Street, Suite 204 Toronto, Ontario M5S 2R4
Tel: 416 962 5009 / 416 962 5882 Fax: 416 962 8817
envirolaw.com 60
Saxe Law
Office
