Environmental Protection Alternative Measures Agreement

BETWEEN
THE ATTORNEY GENERAL OF CANADA

AND
HER MAJESTY THE QUEEN as REPRESENTED BY THE MINISTER OF PUBLIC WORKS AND GOVERNMENT SERVICES CANADA (hereinafter referred to as "PWGSC").

WHEREAS PWGSC has been charged for alleged violations under the Canadian
Environmental Protection Act, 1999 (called CEPA, 1999 or the Act in this agreement);

WHEREAS the prosecution for the offences is not barred at law and in the opinion of the
Attorney General of Canada sufficient evidence to proceed with the prosecution of the offences exists;

WHEREAS the Attorney General of Canada is satisfied that Environmental Protection
Alternative Measures (Measures) would not be inconsistent with the purposes of the Act in this case;

WHEREAS PWGSC having been advised of the right to be represented by counsel accepts responsibility for the acts or omissions that form the basis of the alleged offences and fully and freely consents to participate in the Measures;

WHEREAS the Attorney General of Canada has consulted with the Minister of the
Environment, and has considered the surrounding circumstances, the nature of the alleged
offences, and all other factors to be considered as prescribed by CEPA, 1999;

WHEREAS both Parties agree that an Environmental Protection Alternative Measures
Agreement is the most appropriate means of resolving all matters pertaining to this case,

THEREFORE, the Attorney General of Canada and PWGSC enter into an Environmental Protection Alternative Measures Agreement with the following provisions:

PURPOSE
The express purpose of this Agreement is to further the goals and objectives of CEPA, 1999 and its regulations.

FACTS
Her Majesty the Queen as represented by the Minister of Public Works and Government Services Canada has been charged with the following offences, in particular:

COUNT 1
Her Majesty the Queen as represented by the Minister of Public Works and Government Services Canada ("PWGSC") on or about between the 10th day of November, 2003, and the 16th day of March 2007, both dates inclusive, at or near 266 Graham Avenue, in the City of Winnipeg, in the Province of Manitoba, did unlawfully release, or allow or cause the release of a halocarbon that is contained in an air-conditioning system or an associated container or device, contrary to section 3(a) of the Federal Halocarbon Regulations, 2003, SOR/2003-289, and thereby did commit an offense contrary to section 272(1) of the Canadian Environmental Protection Act, 1999 S.C. 1999, c.33

COUNT 2
Her Majesty the Queen as represented by the Minister of Public Works and Government Services Canada on or about between the 1st day of February, 2004, and the 1st day of August, 2006, both dates inclusive, at or near 266 Graham Avenue, in the City of Winnipeg, in the Province of Manitoba, as owner of an air-conditioning system, or a container or equipment used in the reuse, recycling, reclamation or storage of a halocarbon, did unlawfully fail to, in the event of a release of more than 10kg but less than 100 kg of a halocarbon from an air-conditioning system, or from a container or equipment used in the reuse, recycling, reclamation or storage of a halocarbon, submit to the Minister a report that contains the information set out in column 3 or item 8 of Schedule 2, contrary to section 33(1) of the Federal Halocarbon Regulations, 2003, SOR/2003-289, and thereby did commit an offence contrary to section 272(1) of the Canadian Environmental Protection Act, 1999, S.C. 1999, c.33.

COUNT 3
Her Majesty the Queen as represented by the Minister of Public Works and Government Services Canada on or about the 1st day of February, 2007, at or near 266 Graham Avenue, in the City of Winnipeg, in the Province of Manitoba, as the owner of an air-conditioning system or a container or equipment used in the reuse, reclamation or storage of a halocarbon, did unlawfully fail to submit the release report required by section 33(1) twice annually, not later than 30 days after January 1, 2007, contrary to section 33(2) of the Federal Halocarbon Regulations, 2003, SOR/2003-289, and thereby did commit an offence contrary to section 272(1) of the Canadian Environmental Protection Act, 1999, S.C. 1999, c.33.

COUNT 4
Her Majesty the Queen as represented by the Minister of Public Works and Government Services Canada on or about between the 23rd day of October, 2006, and the 28th day of November, 2006, both dates inclusive, at or near 266 Graham Avenue, in the City of Winnipeg, in the Province of Manitoba as an owner of an air-conditioning system, did unlawfully fail to as soon as possible after a leak from an air-conditioning system is detected, repair the leak; isolate the leaking portion of the system and recover the halocarbon from the portion; or recover the halocarbon from the system; contrary to section 13 of the Federal Halocarbon Regulations, 2003, SOR/2003-289, and thereby did commit an offence contrary to section 272(1) of the Canadian Environmental Protection Act, 1999, S. C. 1999, c.33.

COUNT 5
Her Majesty the Queen as represented by the Minister of Public Works and Government Services Canada on or about between the 15th day of May, 2006, and the 14th day of March, 2007, both dated inclusive, at or near 266 Graham Avenue, in the City of Winnipeg, in the Province of Manitoba did unlawfully fail, before dismantling, decommissioning or destroying any system, to recover all halocarbons contained in the system into a container designed and manufactured to be refilled and to contain that specific type of halocarbon contrary to section 8( 1) of the Federal Halocarbon Regulations, 2003, SOR/2003-289, and thereby did commit an offence contrary to section 272(1) of the Canadian Environmental Protection Act, 1999, S. C. 1999, c. 33.

COUNT 6
Her Majesty the Queen as represented by the Minister of Public Works and Government Services Canada on or about between the 13th day of August, 2004, and the 13th day of August, 2006, both dates inclusive, as an owner of an air-conditioning system, did fail to conduct a leak test, at least once every 12 months, of all components of an air-conditioning system that come into contact with a halocarbon contrary to section 11(1) of the Federal Halocarbon Regulations, 2003, SOR/2003-289, and thereby did commit an offence contrary to section 272(1) of the Canadian Environmental Protection Act, 1999, S. C. 1999, c. 33.

COUNT 7
Her Majesty the Queen as represented by the Minister of Public Works and Government Services Canada on or about between the 13th day of August, 2003 and the 23rd day of October, 2006, both dates inclusive, as an owner of an air-conditioning system, did fail to maintain a written record that contains the information set out in column 3 or item 5 of Schedule 2, contrary to section 31(1) of the Federal Halocarbon Regulations, 2003, SOR/2003-289, and thereby did commit an offence contrary to section 272(1) of the Canadian Environmental Protection Act, 1999, S. C. 1999, c. 33.

Charges were laid in Winnipeg, Manitoba on January 28, 2009.

PWGSC has been advised and understands that the above noted Charges encompass a description of the offences that it is alleged to have committed:

PWGSC does not deny participation or involvement in the commission of the alleged offences and accepts responsibility for the above acts.

MEASURES

STANDARD OPERATING PROCEDURES
PWGSC shall create and implement standard operating procedures for the management of halocarbons nationally as regulated under the Federal Halocarbon Regulations, 2003. The standard operating procedure shall be in place by March 31, 2010. The standard operating procedures shall be reviewed annually by PWGSC, and updated as necessary.

CONTRACTORS AND SUBCONTRACTORS
PWGSC shall create and implement a procedure nationally to ensure contractors and subcontractors are made aware of their responsibilities as regulated under the Federal Halocarbon Regulations, 2003. This procedure must be created and implemented within six (6) months of the signing of this Agreement.

AUDITING
PWGSC shall develop internal auditing procedures nationally to ensure that the departmental management of halocarbons is in compliance with the Federal Halocarbon Regulations, 2003. The internal auditing procedures must be created and implemented by March 31, 2010.

TRAINING
PWGSC shall have in place a national training program related to the proper management of halocarbons and compliance with the Canadian Environmental Protection Act, 1999 and the Federal Halocarbon Regulations, 2003. PWGSC will supply a copy of the training program material to Environment Canada by March 31, 2011.

PWGSC shall take all reasonable steps to ensure each employee across Canada, who can reasonably be expected to perform duties relating to the management of halocarbons, has completed the training program by March 31, 2011.

PUBLICATION
PWGSC shall submit by March 31, 2010, an article for publication in PWGSC's weekly electronic newsletter titled "In the Know". The article shall describe the facts of this case, issues relating to halocarbons, and the essential terms of this Agreement, including the availability and benefits of Environmental Protection Alternative Measures Agreements. Prior to the article being published in "In the Know", PWGSC shall submit the article to Environment Canada for review and approval. Environment Canada further reserves the right to publish a similar article on the Environment Canada website.

ENVIRONMENTAL DAMAGES FUND
PWGSC shall pay, on or before March 31, 2010, the sum of $50,000 (fifty thousand dollars) payable to the Receiver General for Canada, to be held for the purposes of the Environmental Damages Fund, as administered by the Regional Director General, Environment Canada, Prairie and Northern Region. These funds shall be made available upon application to Environment Canada, to those who apply and whose project(s) are approved.

COMPLIANCE SCHEDULE
PWGSC agrees that it shall comply with the measures, terms and conditions of this Agreement within the time prescribed for each measure herein set forth above.

VERIFYING COMPLIANCE WITH THIS AGREEMENT
The Parties agree that Environment Canada will supervise and monitor compliance with this Agreement, pursuant to the Canadian Environmental Protection Act, 1999 and the Federal Halocarbon Regulations, 2003.

INSPECTION AND OTHER ENFORCEMENT ACTIVITIES
Nothing in this Agreement bars CEPA, 1999 enforcement officers and analysts from conducting inspections or investigations which they are legally authorized to conduct.

REPORTING
Reports relating to the administration of or compliance with this Agreement will become part of the supervision record as well as part of the compliance history of PWGSC. PWGSC agrees to submit progress reports of its compliance with the Measures set out in the Agreement, and PWGSC further agrees that all required reports shall be signed by an officer or employee duly authorized to sign on its behalf. The reports shall be submitted on or before the date specified in each corresponding Measure, and will be submitted to:

Environment Canada
Enforcement Branch
Manitoba District
150-123 Main Street
Winnipeg, Manitoba R3C 4W2

CONFIDENTIAL INFORMATION
All information contained in and obtained by virtue of this Agreement is subject to the provisions of the Access to Information Act and CEPA, 1999.

Trade secrets, financial, commercial, scientific or technical information that is and is treated as confidential information, information the disclosure of which could reasonably be expected to result in material financial loss or gain or could reasonably be expected to prejudice the competitive position of any person, or information which could reasonably be expected to interfere with contractual or other negotiations of any person, will remain confidential and not be disclosed, except as provided for in the Access to Information Act and CEPA,1999.

This Agreement shall be filed with the court, as part of the court record of the proceedings to which the public has access, in accordance with the provisions of section 300 of CEPA, 1999.

Notwithstanding the above, reports relating to the administration of or compliance with this Agreement will be accessible to the public in accordance with Section 301 of CEPA, 1999. The final report will be made available to the public and to the court in accordance with Sections 300(2) and 301. Interim reports will not be made available to the public under Sections 300(2) and 301.

RESERVATION OF RIGHTS
The Attorney General of Canada reserves the right to seek injunctive relief, or any other appropriate remedy, in the event of any violation of the requirements of this Agreement.

PENALTIES
Failure on the part of PWGSC and its responsible officials to comply with the provisions of this Agreement is an offence under section 272 (1) (e) of CEPA, 1999. PWGSC and its responsible officials may also be prosecuted on the original offences because Subsection 296(5) provides that the use of environmental protection alternative measures in respect of a person who is alleged to have committed an offence is not a bar to any proceedings against the person under CEPA, 1999. In the event that PWGSC and/or its responsible officials fail to comply with the stipulations of this Agreement, PWGSC and/or its responsible officials are liable on conviction to the penalties provided for pursuant to CEPA, 1999.

FORCE MAJEURE
A Force Majeure is an event resulting from circumstances beyond the control of PWGSC or any entity controlled by PWGSC that causes or may cause a delay in compliance with any provision of this Agreement. If a Force Majeure event occurs, PWGSC shall notify the Attorney General of Canada in writing as soon as practicable, but in any event within seven days of when PWGSC first knew of the event or should have known of the event by the exercise of due diligence. The notice shall invoke the Force Majeure provisions of this Agreement and describe the anticipated length of time during which PWGSC will not be able to comply with this Agreement.

In the event that a Force Majeure occurs, PWGSC shall bring an application to vary in accordance with Section 303 of CEPA, 1999. The application shall be made by PWGSC to the Attorney General of Canada and PWGSC shall send a copy of the application to Environment Canada.

INTENT AND INTERPRETATION OF THE AGREEMENT
This Agreement constitutes the entire Agreement between the Parties. The Parties acknowledge that there are no representations between the Parties other than those expressly set out in this Agreement.

This Agreement supersedes all previous negotiations, arrangements, letters of intent, offers, proposals, representations and information conveyed, whether oral or in writing, between the Parties or their authorized representatives.

SEVERABILITY
The provisions of this Agreement shall be severable should for any reason PWGSC be lawfully excused from performing any of the terms of this Agreement. For greater certainty, the remaining provisions of this Agreement shall remain in full force and effect until the completion of this Agreement.

TIME OF THE ESSENCE
Time is of the essence in this Agreement.

GOVERNING LAW
This Agreement shall be governed by the laws of Canada including the provisions of CEPA, 1999 and its corresponding regulations, and any definitions that apply to this Agreement are those provided for in CEPA, 1999 and its corresponding regulations, and those also specified in this Agreement.

WARRANTY
PWGSC warrants that the obligations it has undertaken in this Agreement will be performed by persons who are competent, qualified and have the appropriate knowledge and skill.

CERTIFICATION
PWGSC certifies that on the date of the coming into force of this Agreement, there is no specific direction in existence requiring PWGSC to undertake any activity or refrain from the taking of any activity constituting the Measures negotiated in this Agreement by any federal, provincial, territorial or municipal law, or court order. PWGSC also certifies that the person whose signature appears below is that of a designated representative of PWGSC who has been duly authorized to sign this Agreement and bind PWGSC.

VARIATION OF AGREEMENT
An Application to vary this Agreement shall be made in accordance with section 303 of CEPA, 1999. The Application shall be made to the Attorney General of Canada and a copy of the Application shall be sent to Environment Canada.

TERMINATION OF THIS AGREEMENT
This Agreement shall terminate when the terms and conditions have been fulfilled to the satisfaction of the Attorney General of Canada on or before March 31, 2011, or otherwise in accordance with the applicable provisions of CEPA, 1999.

ASSIGNMENT
This Agreement shall not be assigned without written consent of the Attorney General of
Canada.

NO DEFENSE OR BAR TO PROCEEDINGS
Pursuant to Section 296(5) of CEPA, 1999, the use of Environmental Protection Alternative Measures in dealing with PWGSC is not a bar to any proceedings against PWGSC for future breaches of the provisions of CEPA, 1999 and the applicable regulations; nor shall the fact that PWGSC has provided Environment Canada with information relating to the training of PWGSC staff, PWGSC auditing processes, PWGSC Standard Operating Procedures or any other document or information reported by PWGSC to Environment Canada, constitute a basis for any defense to any proceedings against PWGSC for future breaches of the provisions of CEPA, 1999, and the applicable regulations.

NOTICE
Whenever in this Agreement, it is required or permitted that notice or demand be given or served by either Party to or on the other Party, such notice or demand will be in writing and will be validly given or sufficiently communicated if forwarded by registered mail, priority post mail or facsimile as follows: The address for delivery is:

To: The Department of Justice (Canada)
301-310 Broadway
Winnipeg Manitoba R3C OS6
Attention: Kirsty Elgert
Phone: (204) 983-2391

To: Agent for the Attorney General of Canada
Myers Weinberg LLP
Barristers and Solicitors
724-240 Graham Avenue
Winnipeg, Manitoba R3C 017
Attention: John B. Harvie
Phone: (204) 942-1501
AND To: Environment Canada
Jason Miller
Enforcement Officer
Environment Canada
Enforcement Branch
Manitoba District
150 - 123 Main Street
Winnipeg, Manitoba R3C 4W2
Phone: (204) 984-2955

The Parties may change their respective addresses for delivery by delivering notice of change as herein provided.

WAIVER
No condoning, excusing or overlooking by either of the Parties of any default by the other party at any time or times in performing or observing any of the Parties respective covenants will operate as a waiver of or otherwise affect the rights of the Parties in respect of any continuing or subsequent default. No waiver of these rights will be inferred from anything done or omitted by the Parties except by a variation of this Agreement in accordance with Section 303 of CEPA, 1999.

IN WITNESS WHEREOF the Parties have executed this Agreement this 22nd
day of September, 2009.

SEALED, ATTESTED TO AND DELIVERED on behalf of PWGSC by:

KIRSTY ELGERT
Solicitor representing Public Works and Government Services Canada

And on behalf of the Attorney General of Canada by:

JOHN B. HARVIE
Agent for the Attorney General of Canada