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ENVIRONMENTAL HOT SPOTS

Anne ParkerIPSOOlnc..

P.o. Box 1670Regina,Sask. S4P 307

Ph: 924-7390 Fax: 924-7522

TABLE OF CONTENTS

I Introduction

IT Environmental Hot Spots

III Directors and Officers Liability

IV Due Diligence Defence

Appendix A

AppendixB

AppendixC

AppendixD

Bibliography

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I.

ENVIRONMENTAL HOT SPOTS

PRESENTATION TO LOSS PREVENTION SEMINAR

DECEMBER 2 AND 3 1994

ANNE PARKER, IPSCO INC.

INTRODUCTION

Environmental law has become one of the most discussed areas of practice over the last few

years. Although it has only recently been classified under that umbrella, many of us have in

reality been practising it for many years as real estate law, in litigation, and in dealing with

regulators. The following discussion will deal with some of the newer aspects of environmental

law including environmental audits, directors' and officers' liability and how to avoid it, and the

"due diligence defence" and its applicability.

ll. ENVIRONMENTAL AUDITS

Environmental audits most often arise in three areas. As part of the examination of a potential

acquisition, as part of an on-going program of environmental management and as a base-line

study to determine existing levels of contamination when selling a property or leasing same.

That advice needs to be given to clients with respect to audits is shown by the Saskatchewan Law

Society's experience. Two claims have recently been made to the Saskatchewan Lawyers'

Insurance Association. In both cases, a service station with leaking underground tanks was

involved. In both claims, the allegation is made that the lawyer failed in the lawyer's duty to

the client by failing to advise that an environmental assessment should be undertaken. The

second claim goes on to claim that the lawyer was negligent in performance of duty by:

.(a) failing to protect the interests of the Plaintiff;

(b) not advising with respect to environmental laws; and

(c) by not advising that the fuel tanks should be pressure tested.

The Statement of Defence to the fll'St claim states that it was not the pracdce of lawyers in 1988

to advise clients to obtain an environmental assessment prior to purchase.

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A quick survey of other jurisdictions found no claims in Newfoundland, Manitoba, Alberta and

Northwest Territories. New Brunswick advised that it has several claims involving failing to

advise or providing incorrect advice to clients on environmental matters and statutory regulation.

The remainder of provinces did not reply to my query.

In 1994, it would be difficult to provide a similar defence. Auditing has become a much better

known tool. The level of scrutiny necessary for any of the three types of audits is dependent on

a number of factors. These may include the history of the property, the level of familiarity with

the operations taking place on the property, and the value of the property. If your client is

looking at buying a piece of property for a relatively small sum, knows· what operations have

been taking place there and that in the past it was pasture land, the client may not feel the

necessity to do a great deal of investigation. However, if the client is financing the transaction

the bank may have a very different notion of what is necessary. It is the lawyers duty to ensure

that the client is aware of potential liability if an audit is not undertaken.

In the United States, the American Society for Testing & Materials ("ASTM") have provided two

standards to use in environmental site assessments for Commercial Real Estate. The fll'St (E1527­

93) deals with a Standard Practice for Environmental Site Assessments: Phase I Environmental

Site Assessment Process and the second (E1528-93) with Standard Practice for Environmental

Site Assessments: Transaction Screen Process.

The term Phase I Audit is one that has come to be used in a generic sense as any initial audit

of a piece of property that does not involve invasive testing. In Canada, although the Canadian

Standards Association ("CSA") has issued a standard of its own, it contains mainly general

motherhood statements on auditing. The ASTM standard is certainly a good guide for plotting

out an audit. Although the terms of the audit appear to be set, care must be given to personalize

operations and to review the audit plan as the audit progresses. As a historical study is done,

many new questions can arise that should be investigated. The ASTM standards are quite

lengthy and have not been appended; however, the address for the ASTM is 1916 Race Street,

Philadelphia, PA 19103.

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There are many groups and individuals that hold themselves out as being able to carry out

environmental audits and at this time there is no single qualification that one can look to for

comfort. The most important qualification to look for is experience. A tender can be sent out

to a number of fIrms to compare both qualifications and price. Relevant experience should come

from similar types of audits to those that are to be undertaken; experience with audits of a pulp

operation do not necessarily mean that a fnm will be good at a gas station audit. Most audits

are obtained from engineering fmns who may have a variety of other pure scientists working

with them.

If the audit is done pursuant to an on-going environmental management policy my advice is don't

do the audit unless you are prepared to deal with problems that may come out of it. How..

quickly they need to be dealt with and how extensive a cleanup is necessary, can usually be

negotiated, especially in Saskatchewan where the regulators prefer to deal in a co-operative

manner with property owners. Environment Canada has stated that, as a matter of policy only,

it will not request copies of audits during routine inspections but will require access to such

reports in certain circumstances including when there are reasonable grounds to believe that an

offence has been committed.

For an audit to be successful the audit team must be given as much information as possible about

the property including the following:

• Prior uses of property;

• Any potentially harmful chemicals or processes in use on the property;

• Contemplated use of property in future; do you plan to zone to industrial or

residential standards;

• Past offences;

• Regulatory orders relating to the property;

• Pollution abatement equipment in place;

• Aerial photos and surveys;

• Abandoned equipment (including underground tanks);

• Copies of any licences or permits;

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• Site plans and building (including sewer) plans;

• Copies of regular reports made both internally and to regulators;

• Details of any current or potential litigation;

• Details of wastes leaving the site.

The Auditors will require access to the site and will probably require a constant companion for

the duration of the on-site audit. If acting for the vendor of property, this is especially important

so that control is maintained over information being given to the auditor. The auditors will also

want to conduct interviews with as many employees, past and present, as possible. Finally, they

should also conduct searches of land titles, surveys, SERM and municipal records, as well as any

other relevant records.

Finally, how should the audit be commissioned? There is considerable debate ·on the best way

to cloak an audit with solicitor-client privilege however, it is my view that the Company (client)

should commission the audit with results to go to the solicitor so that legal advice can be

rendered. This should serve to place the document under the "legal advice privilege" heading.

If the audit was undertaken in contemplation of litigation that heading would also be available.

Two schools of thought exist on whether the lawyer or the client should directly commission the

audit. However, in Wheeler v. Le Marchant (1881), 17 Ch.D 675(CA), the principle was

established that a report generated (in that case a survey) at the request of the lawyer by a third­

P.arty to the lawyer-client relationship was not privileged. Some feel that an environmental audit

can be distinguished but it appears that safest advice is that materials from third-parties are not

generally protected under the legal advice heading so the auditor must become the clients agent

and act on its behalf. If the information is gathered at the lawyers request it is not information

provided by the client and would not receive the benefit of confidentiality.1

1For further discussion on this matter, refer to P. Edwards, "Confidentiality inEnvironmental Auditing" (1991) 1 J.E.L.P. 1 and Commentary on the article by Cotton &Mansell, (1992) 2 J.E.L.P. 117. For further comment on R. v. McCarthy Tetrault. See P.Edwards "Environmental Audits & Privilege: The Courts Make Their Debut" (1993) 3J.EL.P. 204.

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) The circulation of the audit can often act to undo any solicitor-client privilege that may attach

to it. The audit must h~ve been obtained only for the purposes of obtaining legal advice and not

for business planning or valuation purposes. It should only be circulated to counsel and those

within an organization responsible for decision-making. If it is not obtained for the purposes of

obtaining legal advice simply putting a lawyer into the chain will not automatically cloak the

document.

Many lawyers are now advising that there is no guarantee of privilege especially if the document

is to be put to good use within an organization, however, the benefits of having an audit done

far outweigh the downfalls espec~ally when trying to establish a due diligence defence as

discussed below. In R. v. McCanhy Tetrault (1992), 9 C.E.L.R. (N.S.) 12 Ont. Prov. Div.,

documents were prepared at and after a meeting between employees of Lafarge Canada Inc. and

its counsel, McCarthy Tetrault. On the facts of the case, although the Company had written that

counsel was there to "be the keeper and recorder of the information developed", the Court

accepted counsel's evidence that "the purpose of the meeting was to receive confidential

infonnation and provide legal advice concerning the compliance of the Bath facility with

applicable environmental statutes, regulations and polices" and the claim to privilege was upheld

in that case. I believe the case illustrates that if care is taken to maintain confidentiality

internally, courts are willing to entertain claims of privilege.

m. DIRECTORS AND OFFICERS LIABILITY

The potential for officers and directors to incur liability has recently become a very real spectre.

The emphasis in enforcement has gone from prosecutions against companies - where the

company cannot be imprisoned and fmes can be passed on to customers or shareholders, to

prosecutions against individuals. The argument in this regard is that individuals are sensitive to

the risk of personal prosecution, to the social stigma of a conviction, and to the fmancial impact

of a personal fme; the prospect of imprisonment, however remote, will serve to improve

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enforcement by corporations.2 In fact, a survey conducted by Dr. Dianne Saxe 2 has shown that

both methods of enforcement are effective; corporations that have been prosecuted spend more

on environmental protection and corporate executives indicated that if they could be personally

prosecuted for environmental offences, they would ensure that their corporations did more to

avoid such offences.

The Environmental Management and Protection Act, 1978 R.S.S. c. E-1O.2 ("EMPA") S.35(2)

provides that:

"If a corporation has committed an offence provided for in subsection (1), any

officer, director or agent ofthe corporation who directed, authorized, assented to,

acquiesced in or participated in the commission of the offence:

a) is a party to and guilty of the offence; and

b) is liable on summary conviction to the punishment provided for the

offence; whether or not the corporation has been prosecuted or convicted.

S.122 of the Canadian Environmental Protection Act provides specifically that:

"Where a corporation commits an offence under this Act, any

officer, director or agent of the corporation who directed,

authorized, assented to, acquiesced in or participated in the

commission of the offence is a party to and guilty of the offence,

and is liable to the punishment provided for the offence, whether

or not the corporation has been prosecuted or convicted."

I would therefore advise that, at the very least, if you have not given up the practice of becoming

a director of newly incorporated firms you should do so now. Beyond that - what do you need

to tell your client about potential liability?

A good handbook is available from the Institute of Corporate Directors entitled "Environmental

~e Impact of Prosecution of Corporations and Their Officers and Directors uponRegulatory Compliance by Corporations; Dianne Saxe (1990) 1 J.E.L.P.1,p91

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) Protection Legislation - Recommendations and Guidance on Boardroom Practice". The intention

of the book is to allow readers to "gain an overview of what is rapidly becoming a complex

subject with major legal liability exposure for directors and officers of corporations." It is written

in lay terms by Dr. Dianne Saxe. It is available from the Institute for $20 per copy at 250

Consumers Road, Suite 301, Willowdale, Ontario M2J 4V6. I believe it could be given to

individual directors so that they would have in hand a summary of where their responsibility lies

and how to deal with it at the corporate level. Although it was written for an Ontario audience

many of the points it brings out are applicable in Saskatchewan.

To try to protect Directors from liability an indemnity package can be offered by the company.

But if the company is without funds and that fact has driven regulators to pursue individuals, the

indemnity agreement will be cold comfort. It should also be noted that in R. v. Bata Industries

and Thomas Bata et aP, the trial judge noted that there are two theories with respect to

indemnification. The fll'st is that if a director is to be indemnified for a fme it may be necessary

to impose a jail term. The contrasting theory is that a fme will bring on bad publicity which is

unlikely to be rewarded by the company. In those circumstances a jail term would be excessive.

In Bata, the trial judge imposed fines on two directors, but specified that neither director could

be indemnified. On appeal the trial judge's jurisdiction to order that the directors not be

indemnified was upheld. This may become a new trend in sentencing - a trend clients should

be advised of.

Many directors and officers will be looking to depend on insurance coverage. However, most

Directors and Officers Liability packages do not cover environmental matters, especially fmes

and penalties. Individual policies should be read carefully and no assumptions made that

coverage is provided. Directors are left with making sure appropriate mechanisms are in place

to ensure compliance so that a "due diligence" defence (discussed below) is available to them.

3(1992) 7 D.E.L.R. (N.S.) 245, 9 O.R. (3d) 329, (sub nom. R. v. Bata Industries (No.2) 70C.C.C. (3D) 394 (Prov. Div.), sentence varied on appeal (1993, 11 C.E.L.R. (N.S.) 208,14D.R.(3d) 354 (Ont. Gen. Div.)

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The Bata decision and R. v. Varnicolor, Severin Argenton et al.4 (see Ontario Ministry of the ')

Environment, Legal Services Branch, "Legal Emissions" (Fall 1992), vol. 4, No.3), both have

extensive discussions about what principles should be considered when sentencing directors. To

date, in Saskatchewan there has been only one instance where there has been imprisonment. In

R. v. Battery Man, the staff of the corporation disposed of battery acid by pouring it on the

ground. The practice continued for over a year, although the Company was given warnings by

the Environment Department which it ignored. The yard owner was fmed $70,000 and given a

jail term of 30 days. Leave to appeal was refused.

The actual mechanics of how to deal with environmental matters at directors meetings will vary

with the type of business and the inclination of the Board. If the business is one where there is

potential for deleterious environmental effects, environmental matters should be dealt with at

every Board meeting. There is some discussion about whether a separate environmental

committee is necessary; however, the existence of a committee will not reduce the responsibility

for other directors who are not on the committee and some directors may be more comfortable

with a committee of the whole.5

IV. DUE DILIGENCE DEFENCE

The concept of a due diligence arose in the case of R. v. Sault Ste. Marii and is still in place

4(July 9, 1992), Doc. Kitchener (Ont. Prov. Div.) unreported.

Spor further discussion see "Environmental Committees & Corporate Goverance" Chester& Rowley, International Business Lawyer, July/August, 1992

6[1978] 2 S.C.R. 1299, 7 C.E.L.R. 53,3 C.R. (3d) 30,4,N.R. 295,40 C.C.C. (2d) 353,85D.L.R. (3d) 161.

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in spite of numerous Charter challenges regarding reverse onus clauses. To refresh your memory

the Supreme Court of Canada established in the case that:

(a) most pollution charges are offences of strict liability (public welfare - not criminal

offences); the prosecution is required to prove commission of the offence but not

a "guilty mind";

(b) liability for these environmental offences can be avoided by the accused proving

it took all reasonable care to avoid the event giving rise to the prosecution or

reasonably believed in a mistaken set of facts that, if true, would render the act

or omission innocent (otherwise know as the due diligence defence) and

(c) the test for liability is control.

To establish a due diligence defence. Sault Ste. Marie and numerous other cases have set down

a number of criteria all of which involve a consideration of what a reasonable person would have

done in the circumstances. They include proof that:

(a) A properly designed pollution prevention system was in place prior to the offence;

and

(b) The system was properly operating and maintained at the time of the offence; and

(c) The accused reasonably believed in a set of facts which, if true, would render the

act or omission innocent.

The reasonable person is not one with superhuman strengths or unusual powers of foresight. "He

is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing

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that a prudent man would not do and does not omit to do anything which a prudent man would .

do. His conduct is guided by considerations which ordinarily regulate the conduct of human

affairs. His conduct is a standard adopted by the community, by persons of ordinary intelligence

and prudence.'

To determine the standard of care that should be used to demonstrate due diligence some of the

following criteria could be considered:

1. Any general industry standard common to the business activity. This would be minimum

standard of care.

2. Other circumstances may dictate a higher level of care, such as:

(a) The degree of knowledge or skill expected of the person. If the person or

corporation has a great amount of expertise in the subject area ~y would be

expected to exercise a greater degree of care;

(b) The location of the operation may justify extra care being taken, i.e.

environmentally sensitive areas such as the Arctic.

(c) The gravity of the harm that could be caused would call for a higher level of care.

(d) The likelihood of harm. This would mean that risks must be prepared for that a

reasonably careful person could foresee might result from a particular activity;

(e) The alternatives available should also be considered. Although price alone will

not discount an alternative, there does come a point of diminishing returns where

7Arland v Taylor, cited in Re Domtar Inc. (July 4, 1989) (Ont. Prov. Offences(unreported), at p.5 of the judgement.

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the improved performance of the Cadillac version of pollution abatement

equipment is so slight as to not justify its purchase when compared to the Hyundai

version.

3. Knowledge of a problem.8

A very important element of the due diligence defence is to take prompt action to remedy

problems.

Other factors courts have considered include:

• employee training

• the existence of emergency response systems

• adequate financial backup

• adequate staffmg

• the existence of an environmental policy

• indications that new technologies are being pursued

• the existence of audits

• the appointment of a relatively senior officer to the environmental portfolio

• use of outside consultants when matters are outside the company's realm of

expertise

• prompt reporting of problems

• cooperation with authorities.

8Estrin, David. Business Guide to Environmental Law Carswell, 1992 at p.4-21.

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Any due diligence defence will have to be tailored to the facts of the situation giving rise to the

charges. Attached as Appendix A is a list of some selected recent cases where a due diligence

defence was successful, and some where it failed, with a brief description of the facts of each

case. Attached as Appendix B is a list of due diligence recommendations for directors and

officers. By looking at the situation in advance, environmental management programs can be put

in place that will meet the standard and hopefully negate the need for a defence at all.

Also attached as Appendix C is a list of statutes that may be considered when an environmental

issue arises. Although not complete, it may serve to remind you of some unexpected sources of

regulation. Finally, Appendix D contains some guidelines on the public agency branch to contact

on specific issues. None of these lists are exhaustive as consideration must be made of the facts

in every circumstance.

APPENDIX A

Selected Cases Where Defence of Due Diligence Succeeded:

• R. v. Midland Transport Ltd. (N.S. Prov. Ct) January 17, 1992• Took reasonable measures to comply with legislation, provided training and

dangerous goods guide, communicated procedures and policies, perfonned spotchecks, system had been implemented and was reasonable.

• Inadvertence of employees not particularly relevant as due diligence must beestablished by defendant alone.

• R. v. Amoco Fabrics & Fibers Ltd. (Ont. Prov. Div.) May 14, 1992• Offence took place over a period of time (seepage). Court found the Company

exercised due diligence in regard to the continuing discharge.

• R. v. Courtaulds Fibres Canada (ant. Prov. Div.) June 19, 1992• Company with aging equipment had brought in a new operations vice-president,

was changing procedures dealing with environmental problems, was properlytraining employee. .

• Court found reasonable care and due diligence did not require "superhuman"efforts but instead a high standard of awareness and decisive, prompt andcontinuing action. The Court felt to demand more would turn the offence intoabsolute liability defence.

• R. v. Anachemia Solvents Ltd. (ant Prov. Div.) May 14, 1994• Company and officers were charged with offences under EPA as a result of

dealings with PCB wastes.• Court found drivers entitled to rely on shipping manifests, Company had

voluntarily implemented sampling and testing procedures to ascertain if PCBwastes coming in, tested holding tanks. Although Company did not test allwastes, a genuine desire existed to identify likely sources of PCB contamination.Further, testing procedure exceeded government and industry standards.

Selected Cases Where Due Diligence Defence Failed:

• R. v. Bata Industries Ltd. (ant. Prov. Div.) February 7, 1992• No system in place to prevent commission of offence.• Of three officers charged, two convicted and one (vice-president) worked at the

site and the other (president) visited once a month. The president had knowledgeof problem, but had taken no steps to view site and assess problem. Vice­president failed to show he had taken reasonable steps to prevent discharge, failedto take steps to address problem, although approvals were given for necessaryexpenditures, and failed to properly inspect.

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• R. v. Commander Business Furniture Inc. (Ont Prov. Div.) November 26, 1992• Court characterized reasonable care and due diligence as a high standard of

awareness and decisive, prompt and continuing action.• Defence failed because company delayed implementing a solution because of cost

and made economic interests a priority over interests of local residents.

• R. v. Falconbridge Ltd. (No.1) (Ont Prov. Div.) February 1, 1993• Company did not report problem when made aware of discharge.• Company was made aware of potential problem in two successive annual

shutdowns; tried to repair rather than replace, no comprehensive testing, employeetraining grossly inadequate, emergency response manual still incomplete after twoyear's work.

• R. v. Fibreco Pulp Inc. (B.C.S.C.) January 29, 1993• Engineering firm hired to build new mill.• Before starting up, knew proper treatment of effluent uncertain - ministry

suggested pilot program and contingency plan in case system failed; neithersuggestion followed.

• Court said should have shut plant down until solution found, knew operation likelyto be dangerous to environment, but had no contingency plan, and inadequate stafftraining.

• Hiring of expert engineering fmn did not deflect liability - must still participatein decisions.

• Company had been warned, knew problems likely, but still took risk.

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APPENDIXB

Business Guide to Environmental Law

by David Estrin

4.9 DUE DILIGENCE RECOMMENlJATIONS FOR DIRECTORS.OFFICERS AND EMPLOYEES

The following suggestions are offered as the most common actionstaken by management in order to enhance their awareness ofenvironmenta1lss1Jes and reduce their exposure to llab1l1ty. In aneffort to comply With environmental laws and. In the event of non­compliance. minimize or avoid llabUtty. the board ofdirectors. officersand employees of a corporation or institution should consider thefollowing actions. The l1st. while extensive. should not be viewed asall-Inclusive. Corporations and 1nstitutionslarge and small can adoptsome or all of these recommendations in current or modified formatto take Into account their own situation-specific circumstances. Seealso Chapter 2. "Environmental LtabUtties of Corporate Directors andOfficers,"

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DUE DILIGENCE RECOMMENDATIONS 4.9.1

4.9.1 Dlrecton

Due diligence recommendations for directors include:

1. attend board and commtttee meetings:

2. develop or arrange for the development of a writtenenvironmental policy by which the corporation Is to guide itsactivities. Periodically verify the implementation of that policyand update it from time to time:

3. consider reta1n1ng or appointing an environmentalmanager/director who Is knowledgeable in both currentenvironmental standards and technical matters. This willassist the board in keeping abreast ofall new developments inthe application of environmental laws. Alternatively. invitelegal and technical experts to address or present the boardfrom time to time with reports on key environmental issuesand developments:

4. in large corporations or institutions. consider appointing anenvironmental committee of the board. akin to an audit com­mittee. to deal with environmental matters more thoroughlythan board meetings permit and have this committee reportto the full board:

5. ensure that a thorough environmental audit (i.e.. asystematic. documented. objective examination of the com­pany's or institution's performance as it _relates to meetingenvironmental reqUirements) is undertaken from time to time.This may be once every three to five years depending uponissues. problems or new legal developments impacting thefacility (a base audit). The corporation or institution shouldconsider when the appropriate time for such audit might be.In the interim periods. updating reviews on key areasrequlrlng follow-up and other environmental issues that mayneed to be addressed should be carried out;

6. require that an environmental protection program bedeveloped for the corporation or institution. Included withinthat program should be a system for ensuring compliancewith relevant environmental laws. This will include a routinemonitoring plan to determine. for example. levels of effluentdischarge. It would also Include a regular maintenance planto ensure that pollution control equipment that could fall andthereby cause adverse effects to the environment is regularlychecked and repaired so as to minimize the likelihood of

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4.9.1 PROACI1VE ENVIRONMENTAL MANAGEMENT

malfunctioning that results in an environmental catastrophe(these matters may soon be legal requirements in any event).The program should also consider how to deal with or keepabreast of future developments so as to ensure that thesystems w1ll not soon become obsolete;

7. ensure that officers provide periodic reports on environmentalmatters to the board. Included within that report should besuch matters as potential or actual non-compliance withenvironmental laws; Investigations and Enforcement branchvisits or investigations; slgnlftcantpublic complaints; concernsof regulatory authorities. employees and agents and otherenvironmental Issues of concern. The reports should bed1l1gently and thoroughly reviewed by the board;

8. ask questions and demand explanations;

9. request that materials circulated prior to board and committeemeetings be sufficient In detail whUe not being overwhelming.Sufficient lead time should be provided to permit boardmembers to review the materials in an intel11gent andinformed manner;

10. Issue such written directives concerning the periodic reportsand other environmental matters as are deemed necessatyand advisable from a due d1l1gence perspective. Suchdirectives should be clear and unequlvocable;

11. require the establishment of remedial and contingency plansto handle sp1l1s or accidents and procedures to be followed torectify or address non-compllarice with environmental laws.For example. there should be a corporate hierarchicalprocedure for informing the appropriate authorities in theevent of a discharge or split. This procedure should beunderstood and followed by all employees. ThIs item would bepart of the overall environmental protection program;

12. require that environmental charges be immediately reportedto the board in the event that this occurs In the period priorto the periodic reports to the board. The seriousness of thecharges may dictate that the board address these even Inadvance of a regularly scheduled board meeting:

13. ensure that adequate financial and human resources forenvironmental purposes are allocated;

14. ensure that key decisions made by the board with respect toprotection of the environment are reflected in minutes of the

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DUE DILIGENCE RECOMMENDATIONS 4.9.2

board from Ume to Ume. In the event of a dissent, especiallyon signIficant Issues, ensure that the minutes record anyboard member's dissent:

15. be personally aware of environmental Issues In thecorporation by attending board meetings and reviewingprepared reports: keep abreast of IndustIy practices In theenvironment and actively exhort the corporation to complywith statutory obligations:

16. require that environmental protection be an agenda Item ateach .meetIng of the board (depending upon regularity ofmeetings this should be no less than quarterly):

17. where necessary, ensure that Items raised at one boardmeeting are followed up at subsequent meetings:

18. Immediately and personally react on notice of environmentalsystem failure:

19. seek Indemnltlcation, to the extent permitted by law, forenvironmental matters.

4.9.2 Omcers

Due d1l1gence recommendations for officers Includes:

1. consult legal counsel and consultants expedenced Inenvironmental matters from Ume to time so as to keep abreastof all new developments In the appllcation of environmentallaws and regulations: alternatively, regularly attendenvironmental conferences (yearly update):

2. appoint a key, knowledgeable facUlty environmental managerand ensure that this individual has direct access to seniormanagement;

3. Implement the environmental pollcy establlshed by the boardand ensure adherence to It by all employees:

4. ensure, In wdtlng, that all employees and representatives ofthe corporation are aware of their IndMdual, as well as thecompany's legal, responslbUltles to complywith environmentallegislation such as the statutoxy requirement to notifyregulatOly agencies and others of a splll. All such personsshould know the appropdate person to report to within thecorporate hierarchy In order to tdgger the mechanism for spillreporting:

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4.9.3 PROACTIVE ENVIRONMENTAL MANAGEMENT

5. institute a tra1ntng program for environmental awarenessamong managers and employees:

6. review assigned and statutory responsibWties of officers todetermine how their duties and powers interact with theenvironmental activities of the corporation and with theserecommendations:

7. develop an effective environmental protection program: updateit from time to time and ensure adherence to that program:

8. develop a corporate or institutional environmental auditingprogram and ensure the follow-up ofaudit recommendationswithin a prescribed time frame. On being satisfied that theaudits and ongoing reports are c~mpleteand accurate, submitsame to the board in a timely manner:

9. ensure that employees and representatives of the corporationor institution are given proper, ongoing training with respectto the facility's environmental protection program includingthe need to respond in a timely manner to environmentalproblems and to report spllis:

10. notify the board when an officer believes that he or she doesnot have the authority or financial means to ensureenvironmental compliance within established budgets:

11. where there is non-compliance or potential non-compliancewith environmental laws, ensure that all reasonable steps aretaken to stop or prevent the non-compliance:

12. require that environmental concerns be brought to theattention of the officer and be addressed in a timely manner:

13. generally ensure that the board's environmental directives,policies and requests are carried out, with the resultingactivities periodically reported back to the board:

14. immediately and personally react on notice of environmentalsystem failure:

15. seek indemnification, to the extent permitted by law, forenvironmental matters.

4.9.3 Emmployees

Due diligence recommendations for employees include:

1. adhere to the corporation's or institution's environmentalpolicy as established by the board;

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APPENDIX C

Saskatchewan Statutes to be considered when reviewing environmental matters:

1. Environmental Management & Protection Act, E-10.2 & Regulations (ie. EnvironmentSpill & Hazardous Substances & Waste Dangerous Goods Regulations)

2. Pest Control Products (Saskatchewan) Act P-8

3. Dangerous Goods Transportation Act (Sask.), D-1.2

4. Clean Air Act, C-12.1

5. Environmental Assessment Act, E-lO.l

6. Air Pollution Control Act (Act repealed by Clean Air Act but Regulations still around)

7. Surface Right Acquisition and Compensation Act, S-65

8. Ozone Depleting Substances Act, 0-8

9. Pipe Lines Act, P-12

10. Water Corporation Act, W-4.1

11. Oil-& Gas Conservation Stabilization & Development Act, 0-3

12. Ground Water Conservation Act, G-8

13. Soil Drifting Control Act, S-54

14. Ecological Reserves Act, E-O.Ol

15. Pollution (by livestock) Control Act, P-16

16. Wildlife Habitat Protection Act, W-13.2

17. Planning & Development Act, P-13

18. Public Health Act & Waste Management Regulations, P-37

2

Federal Statutes:

1. Canadian Environmental Protection Act, c-15.3

2. Transportation of Dangerous Goods, c.T-19

3. Oil & Gas Production & Conservation Act, c.O-7

4. National Energy Board Act, c.S-7

5. Canada Shipping Act, c.S-9

6. Fisheries Act, c.F-14

7. Atomic Energy, c.A-16

8. Canadian Environment Assessment Act, c.C.-15-2

9. Hazardous Products Act, c.H-3

)

APPENDIX D

Public Agency Records

Saskatchewan Environment and Resource Management is divided into three branches. Below aresome examples of where issues may lie and were to get information regarding them:

1. Automobile air emissions - commercial branch;

2. Battery disposal - commercial branch;

3. Blue box program - municipal branch;

4. Cfcs - commercial branch;

5. Clean Air Act - commercial branch;

6. Contaminated sites program - commercial branch;

7. Hydrostatic pipeline testing - industrial branch;

8. Legal searches of land - commercial branch;

9. Landfills - municipal branch;

10. Municipal waste - municipal branch;

11. Municipal Water and sewage works - municipal branch; SaskWater;

12. PCB on-site storage approvals - commercial branch;

13. Clean-up orders - commercial branch;

14. Pesticide storage - commercial branch;

15. Waste generator records - commercial branch;

16. Underground storage tanks - commercial branch.

The Commercial Branch is located only in Regina at 787-6189. Industrial Branch has threeoffices - Saskatoon, Prince Albert and Regina (787-6359) and Municipal Branch has eight offices(Regina (787-6200), Melfott, Yorkton, Esteven, Swift Current, North Batdeford, Watrous andKindersley.

BmLIOGRAPHY

McCarthy Tetrault - The Digest of Environmental Law and Environmental Assessment.

Business Guide to Environmental Law, Estrin, David: Carswell 1992

The Law Turns Green. Environmental Law and Business - Materials from an Executive Seminarpresented by MacPherson Leslie & Tyerman, September, 1991.

Emerging Issues in Environmental Law: A Saskatchewan Perspective - CBA Seminar October,1994.

Site Auditing: Environmental Assessment of Property, STP Specialty Technical Publishers Inc.1991.