Order and reasons - December 5, 2002

Quebec City, Quebec

In the matter of the request for review made by IET-Aquarecherche Ltée,
Ms. Marie-Claude Cantin and Mr. Karl F. Ehrlich concerning environmental protection compliance order No. 2008-2002-08-22-001

Louis LaPierre, Review Officer
December 9, 2002

Reasons for Decision

Background

1. After an inspection at the offices of IET-Aquarecherche Ltée by an Environment Canada enforcement officer, environmental protection compliance order No. 2008-2002-08-22001 (the "order") was issued to the corporation and to Ms. Marie-Claude Cantin and Mr. Karl F. Ehrlich, President and Vice-President respectively of the corporation (the "applicants"). The order was given in writing on October 7, 2002.



2. The order identifies a number of micro-organisms and the enforcement officer concluded that IET-Aquarecherche Ltée, Ms. Cantin and Mr. Ehrlich had not provided the Minister with the information prescribed by subsections 106(1) and (2) of the Canadian Environmental Protection Act, 1999 ("CEPA, 1999") in the form required by the New Substances Notification Regulations, SOR/94-260. The order requires the applicants to provide the information prescribed by subsection 106(1) by November 15, 2002. The information prescribed by subsection 106(2) must be provided by December 16, 2002.



3. Under subsection 256(1) of CEPA, 1999, the applicants made a request for review of the order to the Chief Review Officer. The request was received at the Environmental Protection Review Canada ("EPRC") office late in the day on November 6, 2002, and was entered in the register the following morning, on November 7, 2002. In his letter, counsel for the applicants, Mr. Richard Laflamme, requested a suspension of the operation of the order pursuant to subsection 258(2) of CEPA, 1999. More particularly, Mr. Laflamme requested the following:

[Translaton]

We are also asking [the Chief Review Officer], given all the confusion that the application of this Act has caused our client since 1998, to suspend, for all legal purposes, the operation of the compliance order….

4. In the affidavit accompanying the request, Mr. Laflamme argued in favour of suspending the order:

[Translation]

The applicants are requesting that the order be suspended . . . given the irreparable harm they could suffer from both the general disclosure of the list identifying the micro-organisms grown by the applicants and/or the possibility that the applicants could be convicted of some type of offence under this Act.

5. The Chief Review Officer issued an interim order dated November 15, 2002, suspending the operation of the compliance order until November 21, 2002. In doing so, the Chief Review Officer took into account the very short period of time between receipt of the application and the date when compliance with the order was required (including a long weekend). Mr. Denis Lemieux, counsel for EPRC, informed the Chief Review Officer that Mr. Laflamme and Mr. Simon Kamel, counsel for the Minister, were discussing a settlement. This additional period of time not only made it possible to negotiate a settlement, but also enabled Mr. Kamel to file the Minister's reply to the application to suspend the operation of the order. Mr. Kamel had until noon on November 20, 2002, to do so. His reply was filed within this time limit.



6. After considering the arguments presented by Mr. Laflamme in the application to suspend the operation of the order and Mr. Kamel's reply, the Chief Review Officer denied the application for a stay, with reasons to follow. A hearing on the merits of the request to review the order was scheduled for December 5, 2002.



7. At the pre-hearing conference on December 4, 2002, Review Officer Louis Lapierre, Mr. Simon Kamel and Mr. Richard Laflamme agreed that the hearing would deal only with the question of confidentiality that was the subject of item #6 of the request to review a compliance order and request for confidentiality No. 1300-02-0001 prepared by Mr. Richard Laflamme on November 13, 2002. Review officer Louis LaPierre assured Messrs. Laflamme and Kamel that the confidentiality requested by Mr. Laflamme would be guaranteed during the review on December 5.

The question of confidentiality

Review of the relevant facts

8. Mr. Kamel presented the following facts concerning the alleged offence:
   
   

   1. Section of the Canadian Environmental Protection Act, 1999 or of its regulations that are alleged to have been contravened:

      Canadian Environmental Protection Act, 1999

         Subsections 106(1) and 106(2)

         New Substances Notification Regulations, SOR/94-260 as amended

         Subsection 29.11

         Subparagraph 29.12(a)(i)

         Subsection 29.14(1)

         Section 29.15

   Facts concerning the alleged offence as specified in order 2008-2002-08-22-001

   • The information obtained during an inspection conducted on August 20, 2002, at the offices of IET-Aquarecherche Ltée located at 27 Highway 143 South, North Hatley, by enforcement officers Daniel JG Bidal and Bernard Bruneau, gives me reasonable grounds to believe that IET-Aquarecherche Ltée is manufacturing micro-organisms that do not appear on the Domestic Substances List. These micro-organisms are manufactured, marketed, sold and distributed under the brand name Bacta-Pur by IET-Aquarecherche Ltée. A list of 20 micro-organisms was obtained from Mr. Ehrlich during the inspection and none appears on the Domestic Substances List as published in the Canada Gazette, Part II, on the following dates: March 18, 1997, April 30, 1997, and June 24, 1998.
   
   
   
   • The additional information obtained from our Gatineau (Hull Sector) offices shows that IET-Aquarecherche Ltée provided incomplete report forms in 1997 and that these forms were returned in 1998, with the missing information identified. Despite Ms. Cantin's statement that she tried to communicate with the New Substances Branch, the information concerning the micro-organisms manufactured by IET-Aquarecherche Ltée remains incomplete.
   
   
   
   • I therefore have reasonable grounds to believe that:
     
     

     1. you have contravened, and continue to contravene, subsection 106(1) of the Canadian Environmental Protection Act, 1999 by manufacturing the following micro-organisms:
        (The micro-organisms are subject to the request for confidentiality and must not be disclosed.)

        without providing the Minister with the regulatory information within the time limits specified in subsection 29.11(1) and subparagraph 29.12(a)(i) of the New Substances Notification Regulations, SOR/94-260 as amended.

     2. you have contravened, and continue to contravene, subsection 106(2) of the Canadian Environmental Protection Act, 1999 by manufacturing the following micro-organism:
        (The micro-organism is subject to the request for confidentiality and must not be disclosed.)

        without providing the Minister with the regulatory information within the time limits specified in subsection 29.14(1) and section 29.15 of the New Substances Notification Regulations, SOR/94-260 as amended.

   Information requested by order

   You are hereby ordered to take the following measures in accordance with the procedures and within the time limits hereinafter indicated:

   1. For each of the micro-organisms listed above [see (a)] (The micro-organisms are subject to the request for confidentiality and must not be disclosed.):

      • Correctly complete Schedule 15 (see Appendix 1 of this compliance order), as required by subsection 29.11(1) of the New Substances Notification Regulations, SOR/94-260 as amended;
      
      
      
      • If, however, you present the necessary evidence to establish that these micro-organisms were manufactured or imported into Canada between January 1, 1984, and December 31, 1986, you can instead complete Form B (see Appendix 2 of this compliance order) for purposes of this compliance order;
      
      
      
      • Send Schedule XV duly completed, or Form B, as the case may be, by November 15 at the latest, to the Minister of the Environment, care of Gordon Stringer, to the following address:

      Notifications Processing and Controls Section
      New Substances Branch
      Environment Canada
      14th floor, Place Vincent Massey
      351 St-Joseph Boulevard
      Gatineau, Quebec
      J8Y 3Z5

   2. For the micro-organism listed above [see (b)] (The micro-organism is subject to the request for confidentiality and must not be disclosed.):

      • Correctly complete Schedule XV (see Appendix 1 of this compliance order), as required by subsection 29.14(1) of the New Substances Notification Regulations, SOR/94-260 as amended;
      
      
      
      • Send Schedule XV duly completed, by December 16, 2002, at the latest, to the Minister of the Environment, care of Gordon Stringer, to the above-mentioned address.

      You must inform me, in the following manner, of the progress you are making in implementing the measures:

      1. Provide written notification of the date on which the above-mentioned required information was sent to Mr. Stringer, within 5 days following the sending of this information.
      
      
      
      2. Provide proof that the information was sent to and received by Mr. Stringer as soon as possible after the information is sent.
   
   
9. Mr. Laflamme argued in favour of suspending the order, given the irreparable harm that could be caused to IET-Aquarecherche Ltée, which harm may result from the general disclosure of the list identifying the micro-organisms manufactured. He also pointed out that the information concerning the ecology of the micro-organisms could disclose to competitors the operating mechanisms and treatment procedures.



10. Mr. Laflamme pointed out that the short time limit imposed on IET-Aquarecherche Ltée in Mr. Gordon Stringer's letter of October 3, 2002, and the filing of order 2008-2002-08-22-001 did not give IET-Aquarecherche a reasonable amount of time.



11. Mr. Laflamme argued that the applicants claim that they have repeatedly tried to provide the information required by the Department's representatives while seeking a guarantee of confidentiality concerning the disclosure of the identity of the micro-organisms used by IET-Aquarecherche in its culture tanks.



12. Mr. Laflamme pointed out that the applicants never refused to produce the information, but rather were denied the guarantee of confidentiality concerning disclosure of the list of information required.



13. Mr. Laflamme also pointed out that, despite Mr. Gordon Stringer's remarks concerning confidentiality procedures in his letter of October 3, 2002, the situation did not reassure his client.



14. In reply, Mr. Kamel pointed out that enforcement officer Bidal had offered IET-Aquarecherche Ltée the opportunity to make oral representations, but that IET-Aquarecherche Ltée apparently declined the following offer:

[Translation]

Opportunity to Make Oral Representations

Under subsection 237(1) of the Canadian Environmental Protection Act, 1999, you have the opportunity to make oral representations on the proposed compliance order.

Making oral representations is voluntary. It enables you to provide information concerning the alleged offence or the content of the environmental protection compliance order, or both. The attached environmental protection compliance order could be issued without any changes, or changes could be made in light of your representations.

Please contact me by September 25, 2002, at the latest to let me know if you plan to take advantage of the opportunity to make oral representations.

If you do, and you plan to submit written documents to me when you make your representations, please provide me with a copy for my own records.

This notice of intent was delivered to you in North Hatley, Quebec on September 13, 2002, by:

Daniel JG Bidal
Enforcement Officer
Badge No. 210
105 McGill Street
Montréal, Quebec
H2Y 2E7
(514) 496-6672
(514) 496-2087
daniel.bidal@ec.gc.ca

15. Mr. Kamel also pointed out that the confidentiality aspect was addressed in sections 314 and 315 of the Canadian Environmental Protection Act, 1999. He also referred to the procedures that were possible under:

    • the Masked Name Regulations
    • the Access to Information Act, S.C.
      1980-81-82-83, c. 111, Sch. l "1"


16. However, Mr. Kamel pointed out that the procedures prescribed by sections 313, 314 and 316 are initiated only where the record is complete and all the required information has been provided. In the case of IET-Aquarecherche Ltée, the required information, as defined in Schedule XV (see Appendix 1 of the order and confirmed by Mr. Gordon Stringer's letter of October 3, 2002) had not been provided. As soon as the required information was provided, the confidentiality procedure described in section 313 would be initiated and the required information would then be treated as confidential.

Decision

17. Following discussions between Messrs. Kamel and Laflamme and Review Officer Louis LaPierre, the parties submitted a joint settlement proposal that the Review Officer accepted.

For these reasons, the Review Officer decides that:

1. The environmental protection compliance order issued under section 235 of the Canadian Environmental Protection Act, 1999, number 2008-2002-08-22-001, and addressed to the following persons:

   IET-Aquarecherche Ltée
   P.O. Box 208
   27 Highway 143 South
   North Hatley, Quebec
   J0B 2C0

   Marie-Claude Cantin
   President
   IET-Aquarecherche Ltée
   P.O. Box 208
   27 Highway 143 South
   North Hatley, Quebec
   J0B 2C0

   Karl Ehrlich
   Vice-President
   IET-Aquarecherche Ltée
   P.O. Box 208
   27 Highway 143 South
   North Hatley, Quebec
   J0B 2C0

   is confirmed as presented, with the exception of the dates specified at page 3 of the order.

   For each of the micro-organisms (The micro-organisms are subject to the request for confidentiality and must not be disclosed.):
   "Submit, by November 15 at the latest, Schedule XV duly completed…"

   For the micro-organism (The micro-organism is subject to the request for confidentiality and must not be disclosed.):
   "Submit, by December 16, 2002, at the latest, Schedule XV duly completed…"

2. The order is amended by replacing these two dates with the date January 31, 2003.

   The review officer also takes note of the agreement of Messrs. Kamel and Laflamme to hold a meeting as soon as possible in order to establish the procedures required to prepare and transfer the information.

[signed]
Louis LaPierre
Review Officer
December 9, 2002