Environmental provisions of the North American Free Trade Agreement have recently become topical in relation to a development known as the Montreal Technoparc Site. The site, which is owned by the City of Montreal and situated next to the Victoria Bridge less than two kilometres from downtown Montreal, was used as a landfill for decades. In 1966 the site was covered for use as a parking lot for Expo 67 and in the late 80s the city decided to convert the site into a research park for advanced technology.
Environmentalists have made public allegations that the city is aware of the presence and discharge of contaminants from the site.
Under Article 14 of the NAAEC, any person or organization may submit a claim in which allegations are made that a NAFTA partner (one of the signatory governments) has failed to effectively enforce its environmental law. A submission under these provisions may result in the CEC investigating the matter and the creation of a factual record of its findings. (See “NAFTA Waste” article in the April/May 2001 edition.)
In August 2003, three Canadian and two U.S. environmental NGOs made a submission which asserts that polychlorinated biphenyls (PCBs) and polycyclic aromatic hydrocarbons (PAHs) and other pollutants are being discharged from the Technoparc site. The submission alleges that samples were gathered showing PCB discharges of up to 8.5 million times the 1987 Canadian Water Quality Guideline and levels beyond the point of discharge of up to 941,000 times the PCB Guideline along with elevated levels of other toxic substances.
The submission charges that the discharges are contrary to Section 36(3) of the federal Fisheries Act that prohibits the deposit of a “deleterious substance” into water frequented by fish or in any place under any conditions where the substance may enter such water. Interestingly, the submission says that Environment Canada began an investigation into the Technoparc contaminants in April of 2002 that was terminated in April 2003. Upon completion of its investigation Environment Canada stated that “the analysis we have done does not allow us to determine the precise source of the deleterious substances released to the St. Lawrence River.”
Amazingly, Environment Canada cites this rather inconclusive and unsettling state of affairs as the basis of bringing “closure” to the investigation requested in 2002.
The submission to the CEC states that Canada has failed to halt the ongoing discharges and to effectively enforce Section 36(3) of the Fisheries Act, as required by Article 14 of the NAAEC. It also alleges that the City of Montreal’s attempts to contain the contaminants have been ineffective.
Waste management companies and organizations routinely spend significant resources to ensure that they are in compliance with government regulations. Non-compliance can be extremely expensive in the form of fines and/or clean up and other costs.
As a result, it’s quite disconcerting to those in any industry that has significant environmental concerns when a government appears not to enforce its own environmental regulations. Should a CEC investigation result in a finding that the government has not been living up to its own standards, a further level of regulatory uncertainty will be introduced into what is already a complicated area.
One of the primary concerns for private industry will be whether industry participants will be able to rely on federal or provincial government representatives when they indicate that any particular operation is in compliance with those laws. Should some other third party come along and make allegations such as those being made about the Technoparc, the reputation of an owner or operator of such a site could be significantly impacted. While the City of Montreal is the owner of the Technoparc it could just as easily be a private sector site in some other future set of circumstances.
The moral of this story is that owners and operators of waste management facilities must take it upon themselves to ensure that their operations are in compliance with provincial and federal environmental standards. While comforting statements from environment ministry officials may be rare, even these should be only considered as a partial comfort. If the case of Technoparc was revisited upon the private owner of a waste management facility, the impact could be devastating whether the allegations were eventually proven true or not.
Written by Adam Chamberlain, LL.B. of Power Budd, the Canadian affiliate of Cameron McKenna, an international law and consulting firm. Adam sits on the board of directors of the Ontario Waste Management Association. E-mail Adam at email@example.com