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Factual Record Pulp and Paper Submission (SEM-02-003)

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Factual Record Pulp and Paper Submission (SEM-02-003) Factual Record Pulp and Paper Submission (SEM-02-003) Prepared in accordance with Article 15 of the North American Agreement on Environmental Cooperation June 2006 For more information about this or other publications from the CEC, contact: Commission for Environmental Cooperation of North America 393, rue St-Jacques Ouest, bureau 200 Montréal (Québec) Canada H2Y 1N9 Tel.: (514) 350-4300 Fax: (514) 350-4314 E-mail: [email protected] http://www.cec.org ISBN: 2-89451-948-6 © Commission for Environmental Cooperation of North America, 2007 ALL RIGHTS RESERVED. Legal Deposit - Bibliothèque et Archives nationales du Québec, 2007 Legal Deposit - Bibliothèque et Archives Canada, 2007 Disponible en français – ISBN: 2-89451-947-8 Disponible en español – ISBN: 2-89451-949-4 This publication was prepared by the Secretariat of the Commission for Environmental Cooperation of North America (CEC). The views con- tained herein do not necessarily reflect the views of the governments of Canada, Mexico, or the United States of America. PROFILE In North America, we share a rich environmental heritage that includes air, oceans and rivers, mountains and forests. Together, these elements form the basis of a complex network of ecosystems that sustains our livelihoods and well-being. If these ecosystems are to continue to be a source of life and prosperity, they must be protected. Doing so is a responsibility shared by Canada, Mexico, and the United States. The Commission for Environmental Cooperation of North Amer- ica (CEC) is an international organization created by Canada, Mexico, and the United States under the North American Agreement on Envi- ronmental Cooperation (NAAEC) to address regional environmental concerns, help prevent potential trade and environmental conflicts, and promote the effective enforcement of environmental law. The Agree- ment complements the environmental provisions of the North Ameri- can Free Trade Agreement (NAFTA). The CEC accomplishes its work through the combined efforts of its three principal components: the Council, the Secretariat and the Joint Public Advisory Committee (JPAC). The Council is the governing body of the CEC and is composed of the highest-level environmental authori- ties from each of the three countries. The Secretariat implements the annual work program and provides administrative, technical and oper- ational support to the Council. The Joint Public Advisory Committee is composed of 15 citizens, five from each of the three countries, and advises the Council on any matter within the scope of the Agreement. MISSION The CEC facilitates cooperation and public participation to foster conservation, protection and enhancement of the North American envi- ronment for the benefit of present and future generations, in the context of increasing economic, trade and social links among Canada, Mexico and the United States. VII VIII FACTUAL RECORD: PULP AND PAPER SUBMISSION NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY SERIES Produced by the CEC, the North American Environmental Law and Policy series presents some of the most salient recent trends and developments in environmental law and policy in Canada, Mexico and the United States, including official documents related to the novel citi- zen submission procedure empowering individuals from the NAFTA countries to allege that a Party to the agreement is failing to effectively enforce its environmental laws. Factual Record Pulp and Paper Submission (SEM-02-003) Prepared in accordance with Article 15 of the North American Agreement on Environmental Cooperation June 2006 Table of Contents Abbreviations . 15 1. Executive Summary . 17 1.1 Process for developing the factual record . 18 1.2 Relevant federal and provincial law, policy and practice . 19 1.2.1 Relevant provisions of the Fisheries Act and the PPER . 19 1.2.2 Fisheries Act and PPER enforcement policy and practice. 21 1.3 Relevant provincial law and policy . 25 1.4 Technical background on mill production and effluent treatment processes . 25 1.5 Facts regarding enforcement at the ten mills of concern. 25 2. Summary of the Submission . 31 2.1 General Assertions . 32 2.2 Assertions Regarding Mills in Ontario, Quebec and the Atlantic Provinces . 33 3. Summary of Canada’s Response . 35 3.1 Clarifying Information . 35 3.2 Enforcement Decisions for Specific Mills . 36 3.2.1 Atlantic provinces . 36 3.2.1.1 Irving Pulp and Paper Ltd., Saint John, New Brunswick. 37 3 4 FACTUAL RECORD: PULP AND PAPER SUBMISSION 3.2.1.2 AV Cell Inc. at Atholville, New Brunswick. 38 3.2.1.3 Abitibi-Consolidated Inc., Grand Falls, Newfoundland . 39 3.2.1.4 Bowater Mersey Paper Company Ltd., Brooklyn, Nova Scotia . 39 3.2.2 Quebec . 39 3.2.2.1 Tembec Inc., Témiscaming, Québec . 39 3.2.2.2 The five other Quebec mills . 41 3.2.3 Ontario . 41 4. Scope of the Factual Record . 41 5. Process to Gather Information and Prepare Factual Record . 43 6. Background on Relevant Laws, Regulations, Policies and Practices . 45 6.1 Relevant Provisions of the Fisheries Act . 47 6.2 Pulp and Paper Effluent Regulations . 49 6.2.1 History and Purpose. 50 6.2.2 Overview . 51 6.2.3 TSS and BOD . 55 6.2.4 Acute lethality . 59 6.2.5 Environmental Effects Monitoring . 60 6.2.6 2004 Amendments to the PPER. 63 6.2.7 Summary of possible offenses of the PPER and the Fisheries Act . 65 6.3 Enforcement options listed in the Fisheries Act and the PPER . 68 6.3.1 Minister’s information requests and orders . 68 TABLE OF CONTENTS 5 6.3.2 Prosecutions . 69 6.3.3 Court orders upon conviction . 69 6.3.4 Civil suits for recovery of remediation and other costs. 70 6.3.5 Injunctions . 70 6.3.6 Fine for monetary benefits and other remedies . 70 6.4 Defenses to Fisheries Act Prosecutions . 70 6.4.1 The defenses of due diligence and mistake of fact . 72 6.4.2 Defenses or excuses based on actions of the regulator . 73 6.4.2.1 Officially-induced error . 74 6.4.2.2 Abuse of process . 75 6.5 Compliance and Enforcement Practice and Policy for Fisheries Act s. 36(3) and the PPER . 76 6.5.1 Fisheries Act Habitat Protection and Pollution Prevention Provisions Compliance and Enforcement Policy . 78 6.5.2 Policies and Practices Specific to Enforcing and Seeking Compliance with the PPER . 86 6.5.2.1 Margins of error for TSS and BOD tests . 86 6.5.2.2 Acute lethality . 89 6.5.2.3 Use of information self-disclosed by mills . 93 6.5.2.3.1 Reliability of self-disclosed information. 93 6.5.2.3.2 Self-incrimination . 95 6.5.3 Regional policies and practices and coordination with provinces . 99 6.5.3.1 Environment Canada Ontario Region . 101 6 FACTUAL RECORD: PULP AND PAPER SUBMISSION 6.5.3.2 Environment Canada Quebec Region. 101 6.5.3.3 Environment Canada Atlantic Region . 106 6.6 Relevant Provincial Laws, Regulations and Policies . 110 6.6.1 Ontario. 110 6.6.1.1 Ontario Environmental Protection Act and Effluent Monitoring and Effluent Regulations . 110 6.6.1.2 Ontario Water Resources Act. 114 6.6.1.3 Ontario Lakes and Rivers Improvement Act . 115 6.6.1.4 Ontario compliance and enforcement policy . 115 6.6.2 Quebec . 117 6.6.2.1 The Quebec Environment Quality Act . 118 6.6.2.1.1 Emission of contaminants, certificates of authorization and the right to a healthy environment . 120 6.6.2.1.2 Depollution attestations . 122 6.2.2.2 Quebec Regulation Respecting Pulp and Paper Mills . 125 6.6.2.3 Quebec compliance and enforcement policy . 128 6.6.3 New Brunswick . 129 6.6.3.1 New Brunswick Clean Environment Act . 129 6.6.3.2 Regulations under the Clean Environment Act . 131 6.6.3.3 New Brunswick Clean Water Act. 132 6.6.3.4 New Brunswick compliance and enforcement policy . 134 TABLE OF CONTENTS 7 6.6.4 Nova Scotia . 137 6.6.4.1 Nova Scotia Environment Act and related regulations . 137 6.6.4.2 Nova Scotia compliance and enforcement policy . 140 6.6.5 Newfoundland and Labrador . 142 6.6.5.1 Newfoundland and Labrador Environment Act . 142 6.6.5.2 Newfoundland and Labrador Environmental Control Water & Sewage Regulation . 143 6.6.5.3 Newfoundland and Labrador environ- mental statutes since 2002 . 144 7. Background on Mill Production and Effluent Treatment Processes . 145 7.1 Pulp and paper processes at the mills of concern . 145 7.1.1 Wood preparation . 146 7.1.2 Pulping processes. 146 7.1.2.1 Mechanical pulping . 147 7.1.2.2 Bleached Chemi-Thermomechanical Pulping . 148 7.1.2.3 Kraft pulping . 149 7.1.2.4 Sulphite pulping . 151 7.1.3 Papermaking processes . 151 7.1.4 Utilities. 152 7.2 Effluent treatment for relevant pulp and paper processes. 153 7.2.1 Primary treatment . 154 7.2.2 Secondary treatment . 154 8 FACTUAL RECORD: PULP AND PAPER SUBMISSION 7.2.2.1 Activated sludge treatment . 155 7.2.2.2 Aerated stabilization basins . 157 7.2.2.3 Moving bed biological reactors . 157 7.2.2.4 Nutrient addition . 158 7.2.2.5 Aeration systems for secondary treatment . 158 7.3 ISO 14001 and other environmental management certifications. 158 8. Facts Regarding Enforcement of the Fisheries Act and the PPER at the Ten Pulp and Paper Mills of Concern . 162 8.1 ACI – Grand Falls, NL . 164 8.1.1 Mill background and history . 164 8.1.2 Production processes . 165 8.1.3 Effluent control . 167 8.1.4 PPER test results . 169 8.1.5 Environmental Effect Monitoring.
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