Environmental Regulations Affect the Construction Industry Too
By Brian Bittogoeg, Miller Thomson

As public concern about the environment increases, regulators across the country are responding with an increasing range of new environmental regulations and enforcement actions. Several of these have direct effects on the construction industry and should not be ignored. This article will highlight some of the recent enforcement activity and provide some suggestions to ensure ongoing compliance.

Harm to Water Bodies
Developers and constructors have long been aware of the need to avoid sediment run-off from a disturbed site during construction. The impacts of silt reaching a body of water such as a stream, river or even an apparently insignificant drainage channel can lead to expensive prosecutions and significant penalties under the (itals)Fisheries Act(enditasl) or provincial legislation such as the (itals)Ontario Water Resources Act(enditals).

In January of this year, a Hamilton construction company was fined $15,000 for improperly discharging super chlorinated water to a storm sewer. The company had been hired to install new municipal water mains and had filled the new system with super chlorinated water as part of a standard disinfection procedure. When the system was flushing, the company, apparently by mistake, flushed the water to a storm sewer rather than a sanitary sewer, which in turn resulted in a fish kill in a nearby creek.

Waste Disposal
Construction activity invariably generates waste, whether from demolition or the construction process itself. Care must be taken to ensure that any waste generated is properly disposed of. Ontario, for instance, has long had Source Separation Regulations that require separation of construction waste into various categories including recyclable material. Improper disposal of waste is a common cause for unwanted regulatory attention.

Earlier this month, a Burlington construction company was fined $25,000 for depositing 7000 litres of cement slurry on a property without a certificate of approval. A certificate of approval is a “license” issued by the Ministry of the Environment. It sets out conditions as to who may dispose of “waste,” what types of “waste” may be handled, and how and where they can be disposed. Even the very definition of “waste” has often been the subject of litigation.

Airborne Impacts of Construction Activity
Last year also saw a conviction against an Ontario cement plant owner. Cement dust from the plant covered vehicles on nearby property. This was found to have been a violation of the Environmental Protection Act as a discharge of a contaminant into the natural environment that caused an adverse effect. The company was fined $10,000 for this and two related violations.

This conviction is a reminder of the breadth of the environmental definition of an “adverse effect” in Ontario. Dust, noise and vibration, all inevitable consequences of construction activity are all captured by the broad definition of “contaminant” within the EPA. No construction site can ever be free of these effects. But ignoring them, or failing to take reasonable precautions, can attract unwelcome consequences.

Day to Day On-Site Activities
Refuelling a vehicle or any other transfer of a liquid should be viewed as an activity which could result in environment consequences. Overfilling of tanks, shifting of temporary storage tanks, and incorrect labelling of the contents are common occurrences. An excavation contractor was fined $25,000 last year when overfilling of an unattended bulldozer resulted in a diesel spill that contaminated a nearby drainage ditch.

The Need For Appropriate Permits
Waste disposal is but one of many activities that requires an appropriate permit. A small excavating company in eastern Ontario discovered last year that excavating wells on two properties required a well contractor’s license. Not having one resulted in a prosecution and fine.

The handling of other more serious contaminants without appropriate permits and protections can run afoul of OHSA as well as EPA regulations. Asbestos and PCBs for instance are but two of several heavily regulated substances that could well be encountered on a construction site, especially where an existing older structure is involved. Many of these substances are the subject of recent and proposed regulatory changes.

Implications For The Construction Industry: How To Keep Up
Running afoul of any of the myriad of environmental regulations can have immediate financial consequences ranging from fines to the cost and delay of responding to an unanticipated problem. What is an owner, general contractor or subcontractor to do? How much is to be expected of the industry in general?

The answer is simple: there is a lot that can be done. Ignorance of the law has never been considered an excuse. Once a person chooses to do business by engaging in an activity that has been deemed worthy of regulation, it is entirely that person’s responsibility to find out what regulations apply and what needs to be done to ensure compliance.

The only commonly available defence is that of exercising reasonable care to ensure compliance – commonly referred to as Due Diligence. The exercise of Due Diligence starts by making sure that one is aware of the applicable law. That awareness must then be communicated to everyone involved in the activity. Follow-up systems need to be put in place to ensure ongoing communication and internal enforcement of the obligations.

Awareness of the applicable legal requirements can be achieved by ensuring a compliance audit has been undertaken.

Depending on the size of the operation, an owner, general contractor or even a subcontractor will engage an appropriate consultant to review the proposed activity and advise on the regulatory regime that might apply.

Where permits are necessary, they should be obtained up front. Any necessary training must then be undertaken and documented. Contracts should be written in a way as to clearly communicate which person is responsible for what aspect of the regulatory compliance. Compliance manuals, follow-up procedures, including internal discipline measures must also be in place.

In short, Environmental Compliance should become as integral a part of the ongoing construction industry as OHSA compliance has become. Just as the OHSA imposes often-overlapping duties on owners, constructors, supervisors, employers and workers, environmental obligations will often apply in a similar fashion to the same individuals. The same techniques used to ensure Due Diligence in an Occupational Health and Safety context can, with care and attention, be successfully adopted to ensure that there are proper systems in place throughout a construction project to ensure compliance at all levels with an increasingly complex web of environmental regulatory control.