Alberta’s Environmental Protection and Enhancement Act was recently amended to give the Director (as appointed by the Minister under the Act) new powers—powers to impose clean-up "instructions" when a release is reported. Those amendments have not yet been proclaimed in force.
Currently, s.110 of the Act states that where there has been a release of a substance into the environment that may cause, is causing or has caused an adverse effect, the person responsible for that substance is required to report that release to the Director. However, currently there is no legally imposed obligation to clean up such a release in the absence of the issuance of an environmental protection order by the Director.
Immediate Clean-up Instructions
The amendments, among other things, enable the Director to issue "instructions immediately to the person responsible for the substance to restore the area affected by the release to a condition satisfactory to the Director." If instructions are issued to a person responsible and the person responsible "fails to comply, the Director shall issue an environmental protection order under s.113 to the person responsible for the substance."
The initial amendments mandated the Director to issue instructions to a person responsible immediately upon receipt of a report of a release under s.110 of the Act. There would have been no discretion left to the Director. Though the Legislative Assembly overwhelmingly supported the premise of the Bill, concerns were raised regarding the mandatory nature of the Bill. In fact, the Minister of Environment, Dr. Lorne Taylor, suggested that the compulsory language be amended to provide for more permissive language, so as to afford the Director with the discretion to implement the Act. With that change, the amendments passed.
No Appeal Rights
While the amendment appears to be relatively innocuous, it will have repercussions for the rights of persons who receive such instructions. In particular, no right of appeal to the Alberta Environmental Appeal Board is provided to the "person responsible", following the issuance of instructions by the Director. One might have expected, given the absence of any right of appeal, an elevated degree of procedural fairness accorded to ensure that the Director’s discretion is properly and equitably applied. Unfortunately, this is not the case. The amendments do not require the Director to first consider any particular information.
Additionally, if the Director chooses to exercise his/her discretion to issue instructions, the Director must do so "immediately". Just how quickly the Director must act if he is going to issue instructions remains open to interpretation by the Courts. It certainly leaves little practical room for the person allegedly responsible for the substance to investigate the situation and assess their legal position.
Currently, the clean-up of a contaminated site is generally an informal exercise, consisting of negotiations between the Director and the person responsible as to the appropriate methods and standards. The person responsible is therefore able to avoid being labelled as a polluter and responsibly deal with the matter, albeit under the close direction of the Director. In the absence of co-operation on the part of the person responsible, the Director is left with the alternative of issuing an environmental protection order, which may be appealed.
Perhaps the answer to some of these concerns is forthcoming, as the amendments have yet to be proclaimed in force. A related amendment to the Act authorizes the Lieutenant Governor in Council to enact regulations relating to the manner in which the Director issues instructions. Presumably, the proclamation of the amendments will occur following the development of the regulations. If so, the government has the opportunity to define the manner by which the Director’s discretion is exercised in issuing instructions, so as to ensure that the alleged person responsible is granted fair treatment.
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