Acid Rain: Again?
We have done what we hoped to do on acid rain, but it wasn't enough. In the early 80's,
scientists finally proved that sulfur emissions were killing vast areas of lakes and
forests. After prolonged and sometimes bitter negotiations, emission reductions were
imposed on electric generating stations, smelters, and similar major emitters. In Ontario,
the new limits were imposed through "Countdown Acid Rain", an emission limit and
banking system; later, through the US Clean Air Act "cap and trade" system.
Both programs have been successes, in that the targeted reductions have been achieved.
In the US, the reductions cost far less than predicted: an allowance to emit one ton of
sulfur dioxide, expected to sell for $1,000 US, actually costs about $200. Governments
therefore declared success, dismantled their research programs, fired their scientists and
moved onto other issues. (There is also some suggestion that further reductions in ambient
sulfur levels may exacerbate the climate change effects of greenhouse gases.)
Unfortunately, only a minority of lakes has recovered; some are still getting worse.
The SO2 reduction targets chosen in the 80's were negotiated, based on "best
available technology economically achievable", not on scientific consensus that the
problem would be solved. Still, it seems unfair to industry that, having done what they
were asked to do, they now face another change in the goalposts.
Farm /Oil Wars
Alberta rancher Douglas Jones has become the first farmer to win a lawsuit against the
oil company giants for poisoning his cattle. The award is relatively modest, $176,800 plus
costs and ten years' interest. However, it gives powerful support to Wiebe Ludwig's highly
public battle to stop pollution from oil and gas wells. It also makes important legal
points about proof in cases of chronic pollution.
Dioxin Scandal: Who pays?
The financial fallout from the European dioxin food contamination scandal (described
last month) is now beginning to be assessed. Farmers claim they have lost hundreds of
millions of dollars, partly from consumers' reaction to the scandal, and partly from
government efforts to contain it. For example, France quarantined 450 farms with suspect
feed supplies, and ordered thousands of products pulled from shelves for verification
testing. About 80 farms are reportedly still quarantined The farmers want to know who will
pay for their losses: the government? The feed companies? The unfortunate fat
manufacturer? Their (p.2)insurers? The farmers' own insurance? What if no one in the
production chain was negligent? Should the losses lie where they fall?
Meanwhile, the enormous consequences of "mad cow disease" and the dioxin
incident (both related to animal feed) have provoked the United Nations Food and
Agriculture Organization into a project to develop standards for animal feed. The EU has
also announced new restrictions on animal feed. If we don't follow suit, this could add
further fuel to the trade war between Canada, the US and Europe on the safety of North
American food exports.
SSRA, on site v.
off site
The Ministry of the Environment is grappling with difficult questions about the scope
and role of site specific risk assessments (SSRAs). The 1996 Guideline for Use at
Contaminated Sites in Ontario introduced three alternative clean-up standards:
background, generic (e.g. Table B), and SSRA. The SSRA approach allows higher levels of
contamination to be left on a site if, in the particular circumstances of that site, it
doesn't endanger human health and the environment.
The key problem flows from the difference between "abatement" (off-site) and
"decommissioning" (on-site). There is no statutory obligation in Ontario to
cleanup contaminated land or groundwater. A landowner may be sued or prosecuted if
contaminants from its land travel into or onto neighbouring property and cause or are
likely to cause an adverse effect. However, the onus of proof is on the MOE or victim. In
the SSRA process, the MOE reverses that onus, and requires the landowner to clean anything
on-site that can't be proved to be safe. Issue: can the MOE use the SSRA process to
reverse the onus for off-site contamination? In other words, does a landowner who attempts
an SSRA cleanup of their own land worsen their legal responsibility for contamination that
is already off-site?
Self
Incrimination
Another Supreme Court decision on the admissibility of compulsory evidence has further
confused the law. In a previous case, the SCC ruled that catch reports that a fisher is
required to make by law are admissible in evidence against the fisher. However, in R.
v. White, they ruled that a highway accident report, which is also required by law, is
not admissible against the driver.
The grounds given by the court for their contradictory decisions are weak, and will
lead to more confusion on the admissibility of self- reports.
News from EPA
The US EPA has released a new list of 33 top priority air toxics for urban areas. The
list includes the usual heavy metals, PCBs, chlorinated solvents, and other VOCs. All are
believed to be significant threats to human health.
A new EPA report on treatment technologies being used at US Superfund sites is now
available. "Treatment Technologies for Site Cleanup Annual Status Report - Ninth
Edition" (doc. #EPA-542-R99-001) is available at http://clu-in.org.
The EPA has also released a new policy on when to consider permanent relocation of
residents and businesses near contaminated sites. See www.epa.gov/oerrpage/superfund/tools/topics/relocation.
- Questions? Call Dianne Saxe!
- 66 Russell Hill Road Toronto, Ontario M4V 2T2
- (416) 962 5882
- Fax: (416) 962 8817
- e-mail: dsaxe@envirolaw.com
____________ THE
DIANNE SAXE LETTERS
