Law Times

PAGE 10 FOCUS Compliance with new act may be a challenge Companies to report toxic substances BY DARYL-LYNN CARLSON For Law Times Toxics Reduction Act to establish a framework for companies to cut releases of harmful substances. Th e draft, which makes On- T tario the fi rst province to intro- duce such rules, was released in September for public feedback. Th e input received is now under review. Th e proposed regulation is aimed largely at reducing tox- ins in consumer products. It includes a list of substances deemed toxic along with indus- try sectors that use them and mandates that they track and quantify emissions and then de- velop a plan to reduce them. As part of those rules, com- panies will also have to provide summaries of those plans to the Dianne Saxe expects the threat of public embarrassment will prod companies to reduce their use of toxic substances. public as well as report on their progress. Ontario's regulation, however, doesn't yet include penalties for violations. As with legislation passed in some U.S. jurisdictions, he Ontario government has introduced a draft regulation under the implementation is voluntary. Th e key to its success is the requirement that tracking au- dits disclosing evidence of tox- ic substances must be publicly available. "Th e idea is that you can make signifi cant reductions in toxics by requiring people to plan what they will reduce while there is an embarrassment factor," says Di- anne Saxe, an environmental law specialist in Toronto. She notes as well that the public disclosure requirement will ensure companies won't be able to make noticeable changes in their audit systems over the years that would stop substances from showing up in their reports. Richard King, a partner at Ogilvy Renault LLP who writes an environmental law blog, says the regulation along with its voluntary compliance marks a signifi cant change in approach. Down to earth environmental law resources Annotated Guide to the Canadian Environmental Protection Act This resource unravels the complications of the and offers a practical explanation of how each of the Act's more than 356 sections operates and relate to one another. Looseleaf & binder • $212 • Releases invoiced separately (1-2/yr) P/C 0118030000 • ISBN 0-88804-405-4 Canadian Environmental Assessment Act: An Annotated Guide This service is your one-stop resource for a clear and complete understanding of the current case law, legislation and policies governing this area of law. Looseleaf & binder • $155 • Releases invoiced separately (1-2/yr.) P/C 0417030000 • ISBN 0-88804-224-8 Canadian Environmental Legislation This essential work offers up-to-date federal Acts and extensive regulations including and much more. Perfectbound • 956 pp. • October 2009 • Standing order $85 P/C 0801140000 • Current edition only $95 P/C 0801010000 • ISSN 1195-1648 Multiple copy discounts available Key Developments in Environmental Law 2008-2009 This collection of insightful and timely articles will keep you informed on how new developments in the law will affect your practice and your clients now and in the future. Hardbound • 150 pp. • Published May each year Standing order $105 • P/C 0152140000 Current edition only $115 • P/C 0152010000 • ISSN 1913-0252 Ontario Environmental Legislation Includes the and much more. Perfectbound • Vol. 1 – 940 pp. Vol. 2 – 1,126 pp.• November 2009 Standing order $87 • P/C 0800140000 • Current edition only $97 P/C 0800010000 • ISSN 1195-163X Multiple copy discounts available Ontario Environmental Protection Act Annotated Your best source for a clear and immediate understanding of the Act, its regulations and the covering all the key issues. Looseleaf & binders (3) • $459 • Releases invoiced separately (4/yr) P/C 0488030000 • Vol.1/2/3 - ISBN 0-88804-112-8/-180-2/-182-9 The Prosecution and Defence of Environmental Offences Sentencing Charts now in electronic format Revised and updated, this service reflects the not yet in force amendments made to federal environmental laws by the , S.C. 2009, c.14, preparing you for their implications. Looseleaf, binders (2) & Internet access • $289 Releases invoiced separately (3/yr) • P/C 0159030000 Vol. 1 ISBN 0-920722-57-1 • Vol. 2 ISBN 0-88804-370-8 Regulatory and Corporate Liability: From Due Diligence to Risk Management Gain important perspective on the liability of organizations in regulatory and criminal contexts, and find out how to limit liability and the risk of prosecution. Looseleaf & binder • $205 • Releases invoiced separately (1-2/yr) P/C 0134030000 • ISBN 0-88804-420-8 Toxic Real Estate Manual This resource covers the fundamental principles of private and public liability connected with contaminated property and features pertinent case law. Looseleaf & binder • $107 • Releases invoiced separately (1/yr) P/C 0408030000 • ISBN 0-88804-172-1 and selected regulations, "Up until very recently, it's all been about pollution or emis- sions. But now there's a bright line being drawn between en- vironmental regulation and consumer products due to their health impact." He points to the publicity in recent years about toxic sub- stances used in the production of water bottles, children's toys, and cosmetics. "Th e notion of toxic reduc- tions that is being spurred on by health concerns is very much at the forefront." Ontario's approach is unique in that it doesn't measure emis- sions or require companies to submit a risk-assessment report before having to reduce them. "Th is operates on the pre- sumption that as a society, we're just better off reducing toxics," King says. "It's not prescriptive legisla- tion. [It] doesn't say you have to reduce by a certain amount, and there are no requirements that you have to reduce toxic amounts in your processes by, say, 10 per cent." "So it's less command-and- control legislation that operates wherein there's a strict standard or prohibition and is more volun- tary with a public relations com- ponent to it." At the time of the regulation's fi rst reading last spring, envi- ronmental lobbyists applauded the move. Still, they wanted to see the rules broadened to in- clude protections for employees in workplaces. For his part, King expects the regulation will succeed due to the threat of negative publicity surrounding the products com- panies produce. As well, consum- ers are increasingly holding busi- nesses accountable through their spending habits. He notes that already happens under federal legislation that re- quires companies to report their emissions. "Companies don't want negative publicity, so pub- lic scrutiny can be used as an en- forcement tool." Joanna Rosengarten, an en- vironmental law practitioner at McCarthy Tétrault LLP, says the regulation could be chal- lenging for companies trying to achieve compliance. "I think the most onerous aspect will be tracking and quantifying each toxic sub- stance involved" throughout the production process. "Th ey will have to look at the process from start to fi nish of what goes through the facility and what's released in the end." Ultimately, she acknowledges the public record adds motivation to comply but says some compa- nies could be at a disadvantage in preparing the reports. Still, the province has said it will invest at least $24 million to help industries transform their production processes as well as fi nd alternatives to tox- ins, something Rosengarten says will be a big help. At the same time, the gov- ernment plans to establish an electronic reporting system and a web site that will allow Ontar- ians to monitor the toxins com- panies identify along with their substance-reduction plans. In doing so, it will also help consumers to make decisions on products they seek to buy. According to a fact sheet from the Ministry of the Environment, in extreme cases where the public could be at risk, the act includes authority to prohibit or regulate the manufacture, sale or distribu- tion of a toxic substance or any- thing that contains the substance and to require the manufacturer, seller or distributor to provide no- tice to the public. Th e act received legislative ap- For a 30-day, no-risk evaluation call: 1.800.565.6967 CA050 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com CA050 (LT 1-2x4).indd 1 11/18/09 3:26:06 PM LT1123 proval last June, although there's no word yet on when the regula- tions will take eff ect following the feedback and public comment periods. LT November 23, 2009 • Law Times Consulting editor: Dianne Saxe Pesticide Act ater Act Joseph F. Castrilli Past authors: Duncan J. Cameron, Daniel C. Blasioli and Michel Arès Environmental Protection Act, 1999 Beverly H Environmental Protection Act, S W Canadian afe Drinking W ater Act, Clean Dianne S axe 1993, Past Contributors: Daniel Ricard, Marie Bourry and Joseph de Pencier obby and Kirk Lambrecht Stanley D. Berger; Sentencing Database prepared by: Jonathan Myers and Stanley D. Berger Environmental Bill of Rights, Environmental Enforcement Act Consulting editor: Dianne Saxe Protection Act, 1999, Canadian Environmental Assessment Act Canadian Environmental Stanley D. Berger and Dianne S The Honourable Todd L. Archibald, Kenneth E. Jull and Kent W . Roach Frederick Coburn axe

• Cover
• Sponsorship Woes
• Biting Letters
• Focus On Environmental Law