The recent conviction of Unimin Canada Ltd (R v Unimin
Canada Ltd, 2015 CarswellOnt 11640) underscores again the
potential regulatory costs of failing to take appropriate
preventative measures to ensure compliance with the
Environmental Protection Act, RSO 1990, c E.19
("EPA")–even during unusual weather.
Unimin operates an open-pit Nepheline Syenite mine and related
processing facilities near Kasshabog Lake near Havelock.
Nepheline is a non-toxic mineral used in
the manufacturing of various products, including glass
The company had a Dust Management Plan in place. However, as a
result of an unusually warm winter, followed by an abnormally warm
and dry spring, these measures proved insufficient in preventing
dust, in the form of dry tailings materials, from blowing out
of Unimin's open tailings storage.
Between March and November 2012, neighbouring residents
complained of excess dust blowing from the Unimin facility onto
their properties and coating outdoor furniture, vehicles, and
homes. They reported experiencing various adverse effects,
including loss of enjoyment of the normal use of their
As a result, the company was charged with failing to take
all necessary steps to prevent emissions of dust into the natural
environment that were likely to cause an adverse effect.
In conjunction with the Ministry of Environment and Climate
Change ("MOECC"), Unimin undertook "extensive"
and costly (apparently totalling $1,675,000) mitigation and
preventative measures beginning in March 2012 to get the
dust emissions under control.
Even given these extensive, expensive, and cooperative
efforts, Unimin was ultimately fined $325,000, plus victim
surcharge (the company had a prior conviction under the
Ontario Water Resources Act, RSO 1990, c O.40).
The case serves as yet another reminder that when it comes to
EPA compliance, an ounce of prevention is worth a pound a cure.
It also hints at an evolving relationship between due
diligence and planning for abnormal weather events in the era of
climate change. As "unusual" or "extreme"
weather events increasingly become the norm, exercising due
diligence will require enhanced planning.
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