As of December 1, 2009, Manitoba’s Environment Act, C.C.S.M. c. E125, contains stricter obligations, new reporting requirements, and more traps for the unwary. Largely mirroring the gradual tightening of environmental laws experienced in other Canadian jurisdictions in the past decade, the Environment Amendment Act, S.M. 2009 c. 25, adds the following powers and requirements:
- Pre-emptive protective orders;
- A more stringent pollutant release prohibition;
- Mandatory reporting of certain discharges;
- Mandatory consideration of greenhouse gas emissions;
- Increased involvement of the public in the permitting process; and
- A ministerial override of the approval process.
Each of these additions is discussed in further detail below.
Pre-Emptive Protective Orders
Perhaps the most significant addition to the Environment Act, is a new power granted to Manitoba Conservation to issue pre-emptive protective orders. These can be issued by provincial officers, not only where a pollutant is in the process of being released, but also where there is a perceived risk that it may be released in the future. Until this amendment, Manitoba Conservation’s power to issue such orders was limited to environmental emergencies.
Under the new protective order regime, Manitoba Conservation can require environmental studies, including Phase I and Phase II environmental site assessments, as well as specific remediation activities and ongoing monitoring. It is important to note that these orders can be issued not only against current landowners, but any “person responsible for the pollutant”, including former owners, tenants, former tenants, contractors, fuel delivery companies or other parties.
Shortly after the amendment came into force, the Province of Manitoba issued a press release indicating that it will increase enforcement measures and intends to hire several new environmental inspectors in 2010. Of particular concern to the Province appear to be the many failing small-scale and individual sewage systems found in rural and semi-rural areas. Landowners and rural municipalities who do not want to find themselves on the receiving end of protective orders should start to plan and budget for inevitable system upgrades.
The ability to issue protective orders comes with powerful enforcement tools. If the person to whom a protective order is issued fails to actually perform the required work, Manitoba Conservation can hire its own contractors to perform the work and subsequently obtain a court order allowing it to enforce its costs in the same manner as a court judgment, including garnishment of wages and income streams, or seizure of property. In Ontario, the past decade has shown that where the primary party named in an order is a corporate entity with limited assets, any directors, officers, or controlling shareholders with “deep pockets” will usually also be named in the order as persons responsible. In certain instances, the addition of such parties can be successfully challenged.
Protective orders can be appealed to the Minister within 30 days, but are not stayed pending appeal. Because of the short deadline for filing an appeal, any person served with a protective order should seek legal counsel immediately or risks being bound by its terms.
More Stringent Pollutant Release Prohibition
Section 30.1, a newly added section in the Environment Act, prohibits the release of any pollutant that causes, or may cause a “significant adverse affect,” unless expressly authorized. Although “adverse affect” is not a defined term under the statute, the language mirrors that of Ontario’s Environmental Protection Act, under which an “adverse effect” is not limited to health effects or environmental destruction, but includes material discomfort, loss of enjoyment of the normal use of property, and other factors. A similarly broad interpretation in Manitoba could lead to an increased crackdown on nuisances, such as odour, noise or dust. Fines for breaching this provision can be as high as $50,000 for individuals and $500,000 for corporations, although actual fines will likely be lower.
As a concession to the many livestock operations that form the economic backbone of rural Manitoba, the prohibition set out above contains an exception for “normal farm practices”, which are legally protected under the Farm Practices Protection Act. C.C.S.M. c.F4. Anybody who finds him- or herself involved in any litigation involving a farm nuisance should pay attention to the publications that provide guidance on what does and what does not constitute a “normal farm practice”. For hog barns, which have proven to be the most controversial operations in recent years, the applicable guideline is the Guideline for Pig Producers in Manitoba, 2007, available from Manitoba Agriculture, Food and Rural Initiatives.
Mandatory Reporting of Certain Contaminant Discharges
Concurrent with the more stringent release prohibitions, the new section 30.1 of the Environment Act requires the reporting of any release of a pollutant that may cause, is causing, or has caused an adverse effect. Notably, this requirement is not limited to spills, but can include leaks or other ongoing discharges. Reports must be made to: (1) Manitoba Conservation, (2) persons responsible for the pollutant, and (3) any other person who could be directly affected by the release.
Mandatory Consideration of Greenhouse Gas Emissions
Pursuant to an amendment to section 12 of the Environment Act, Manitoba Conservation must now take greenhouse gas emissions into consideration when issuing environmental approvals of Class 1, 2, or 3 developments as set out in Manitoba Regulation 164/88. This amendment may significantly influence the approval process because both carbon dioxide and methane are explicitly defined as greenhouse cases. Any undertaking involving a combustion process necessarily emits carbon dioxide, even with environmental controls. Furthermore, a substantial number of landfills, septic systems and anaerobic rural lagoons or sewage sludge digesters across Manitoba are releasing methane gas. Brady Road Landfill, one of Manitoba’s largest single-point sources of methane emissions, is currently slated to be retrofitted with a methane capture system by 2011. It is likely that in the future such systems will be required for smaller methane sources as well.
Increased Involvement of the Public in the Permitting Process
Similarly to the Environmental Bill of Rights introduced in Ontario in 1993, the Environment Act requires certain environmental proposals to be posted for public comment. The Director of Manitoba Conservation has traditionally had the discretion to refer any project that garnered substantial negative feedback to the Clean Environment Commission for a hearing. A recent addition to the Environment Act makes it mandatory to publicly post any decision of the Director to not refer the matter to a hearing and to advise the public of the right to appeal to the Lieutenant Governor in Council.
Ministerial Override of the Approvals Process
Where the Director does exercise the discretion to refer a proposal for a Class 1 or 2 development to the Clean Environment Commission for a hearing, the Minister now has the ability to take over the power traditionally reserved for Manitoba Conservation, and to decide to issue, or refuse to issue, a licence. This power is a ministerial override that transfers the decision-making ability from the regulator to the elected government. Since the exercise of this power will invariably be a politically charged process, it remains to be seen how often this provision will actually be used.