previously looked at the question of whether rock debris flying
through the air could be considered a "contaminant"
having an "adverse effect" on the environment. The
Ontario Court of Appeal has said "yes" and the Supreme
Court of Canada will hear that appeal this year.
Meanwhile, in the United States, the U.S. District Court for the
Eastern District of Virginia has recently considered the question
of whether water itself can be considered a pollutant under the
U.S. Clean Water Act.
The facts are reasonably simple. The stream in question
was a small tributary of the Potomac River. Under the Clean
Water Act the state was required to set the total maximum daily
load of a pollutant which may be discharged into that stream, and
when it did not do so the US Environmental Protection Agency
(USEPA) did so. One of the limits it set was a limit on the
amount of stormwater which could be discharged into the stream.
The USEPA stated that the limit on stormwater was intended as a
proxy or surrogate for the amount of sediment discharged into the
stream. Both parties agreed that sediment was a pollutant,
but disagreed on whether stormwater was.
The Court reviewed the definition of pollutant:
dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and
industrial, municipal, and agricultural waste discharged into
and found that the term was not at all ambiguous, and did
not include water. The Court ruled that the USEPA did not
have the authority to regulate something over which it had no
statutory authority as a proxy for something over which it did have
statutory authority. The Court found that the USEPA did not
have the authority to regulate non-pollutants.
Ontario's Ministry of the Environment and Climate Change continues to roll out its Climate Change Action Plan with its proposed GHG guide for projects that are subject to the province's Environmental Assessment Act.
The Imperial Oil refinery pled guilty to one offence for discharging a contaminant, coker stabilizer, thermocracked gas, into the natural environment causing an adverse effect and was fined $650,000...
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