Environmental Protection Review Canada
Symbol of the Government of Canada

Review Enforcement Order - May 2, 2013

IN THE MATTER OF an Environmental Compliance Order issued on April 16, 2013 against Atlantic Industrial Services in File no. 1008-2013-03-22-007

AND IN THE MATTER OF a Request for Review dated May 2, 2013, on behalf of Atlantic Industrial Services

DECISION

This is a case in which a well-established environmental business, namely Atlantic Industrial Services (hereafter 'AIS') a division of EnviroSystems Inc., has carried on business for an extensive period of time in the provinces of Quebec, New Brunswick and Nova Scotia with all the proper licenses, permits and authorizations. The evidence indicates that for at least eight years AIS has been shipping a product to the Lincoln Pulp and Paper mill in Lincoln, Maine. At the same time Environment Canada has been conducting border blitzes one to three times a year with teams of up to four inspectors and enforcement officers. Yet March 14, 2013 is the first time that the issue of an export permit has ever arisen. On the other hand, AIS rather than engaging in a relatively simple 30 day application process to obtain an export permit, has decided to have the Enforcement Order reviewed as a matter of principle (which they are fully entitled to do). I also note that no evidence was introduced of any complaints or enforcement actions by environmental or customs officials in the United States of America, the receiving jurisdiction.

The issue before me is not what the regulations or environmental enforcement regime ought to be nor whether some environmental interest is being properly served according to a well-qualified expert such as John Henderson. The issue before me is whether the regulation as it exists is, in clear and unambiguous terms, applicable to the product and activities of AIS, and whether therefore the Enforcement Order in question stands. It is clear that the decision to issue the Enforcement Order, thereby confirming the Notice of Intent, was a group decision made by the entire team of Environment Canada officers involved in the process, from the very qualified and experienced District Manager, Mr. Robichaud, to the Enforcement Officer who signed the Enforcement Order, Mr. Richard.

I find that the Officers acted in good faith on the basis of their observations and the information supplied by the employees of AIS. To the extent that some of that information was vague, confusing,inaccurate or in error, AIS has only itself to blame. It was only near the end of the issuing process that Mr. Leblond and others attempted to engage in a more technically accurate discussion of the applicability of the regulations in question and the nature of the product being exported.

I must add at this point that Mr. Tremblay's email opinion was merely affirmatory to a decision already arrived at by experienced and qualified Environment Canada officers and I draw no adverse inference from Mr. Tremblay's failure to be present or to testify. Having said that, I also reject Mr. Tremblay's suggestion that I can reach a decision on the issuance" of the Enforcement Order in question or the applicability of the regulation on the basis of something to be implied" from the regulation. (Exhibit 6, page numbered 46) To the extent that AIS's activities are subject to the regulations and specifically the export permitting requirement, that regulation must be clear, unambiguous and applicable.

I also note that the Saint John facility has been or is in the process of being dismantled and re-refined fuel will now be processed at and shipped for export from the Debert, Nova Scotia facility. As well the Stantec Consulting Ltd report dated April 8, 2013 noted and Mr. Henderson in his sworn testimony re-iterated that the Delbert facility is and will be using a combination of screening, gravitational separation and high temperature evaporation or distillation to remove impurities and improve the quality of the used motor oil products, a process termed as re-refining. Mr. Henderson did concede, in cross-examination by Ms. Drodge that the old Saint John facility and the product produced by it at that time was not subjected to any heating process, merely screening and gravitational separation; yet all future used oil will, a fact that even Mr. Robichaud conceeded was significant.

I find that, for the purposes of the regulations and the export permit requirement contained therein, the product is and will be a recycled and reprocessed fuel and not subject to the regulation. It is not being exported for disposal as waste nor for recycling but for consumption as a fuel for industrial use. It has been recycled to a fuel and therefore is not a recyclable product. It is not subject to the Transportation of Dangerous Goods Regulations for as Mr. Henderson stated in his expert testimony the product in question has a flashpoint of 67 degrees celsius, outside the environmental standard of 60 degrees celsius or less. Environment Canada also conceeded that the issue of leachate was not explored nor was it the basis of the issuance of the Enforcement Order in question.

The product is neither hazardous waste nor hazardous recyclable material but a rerefined or recycled fuel exported for consumption as a fuel, not for disposal as waste nor for recycling into some other product. The regulations are therefore not applicable. I therefore cancel and set aside Enforcement Order 1008-2013-03-22-007. In the event of any appeal and pending any other final disposition of this matter I also suspend the Order by reason of the clear and uncontradicted evidence of the significant economic impact of the Order upon AIS.

Dated at Timmins, Ontario this 7th day of July, 2013.

Alan W. Pope
Chief Review Officer