Environmental Protection Alternative Measures Agreement
BETWEEN
THE ATTORNEY GENERAL OF CANADA
AND
SHERRITT INTERNATIONAL CORPORATION (hereinafter referred to as "Sherritt").
WHEREAS Sherritt has been charged for an alleged violation under the Canadian Environmental Protection Act, 1999 (called CEPA, 1999 in this agreement);
WHEREAS the prosecution of the offence is not barred at law and in the opinion of the Attorney General of Canada sufficient evidence to proceed with the prosecution of the offence 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 Sherritt having been advised of the right to be represented by counsel accepts responsibility for the act or omission that forms the basis of the alleged offence 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 offence, 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 Sherritt 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
Sherritt has been charged with:
On or about the 14th day of June, 2000, did unlawfully export from Canada a controlled substance, to wit: dichlorodifluoromethane (R-12), contrary to Section 7 of the Ozone-depleting Substances Regulations, 1998 thereby committing an offence under Section 272(1) of the Canadian Environmental Protection Act, 1999.
Charges were laid in Calgary, Alberta on March 15, 2001.
Sherritt has been advised and understands that the following act forms the basis of the offence that it is alleged to have committed:
That four cylinders, each weighing 13.5 kilos, of difluorodichloromethane (R12), a regulated substance under the Canadian Environmental Protection Act, 1999, were exported from Canada to Cuba on June 14, 2000. The exporter was Sherritt International Corporation based in Calgary, Alberta and the receiver in Cuba was Sherritt International (Cuba) Oil and Gas Limited. The R-12 was virgin refrigerant and not a reclaimed or recycled substance. The IMP documentation for the four cylinders specifically identified the product as "Refrigerant gas R12, UN number 1028, Class 2.2".
Sherritt does not deny participation or involvement in the commission of the alleged offence and accepts responsibility for the above act.
MEASURES
Sherritt shall create a standard operating procedure and policy for the control of the import/export of substances regulated under Canadian Environmental Protection Act 1999 from Sherritt within three months of the signing of this agreement. Sherritt will provide a copy to the Department of the Environment, Government of Canada ("Environment Canada"). This standard operating procedure and policy will be incorporated into Sherritt’s Environmental Management System within six months of signing of this agreement.
Sherritt shall develop and deliver a training program for its procurement staff, which will also be sent to Cratex Industries Ltd. for use by its staff, relating to environmental issues associated with the import/export of ozone depleting substances ("ODS"). A copy of the course outline will be supplied to Environment Canada within three months for approval by the Regional Director of Environmental Protection. The training will be completed within nine months of such approval. Sherritt will provide a list of the people trained to Environment Canada.
Within three months of this agreement, Sherritt shall submit for publication by Hazardous Materials Management Magazine (published by Southam), or a similar journal acceptable to Environment Canada, an article or paid advertising space describing the facts of this case, issues relating to ODS and the essential terms of this agreement, including the availability and benefits of EPAMs.
Sherritt shall pay $30,000.00 payable to the Receiver General of Canada in trust for the Environmental Damages Fund, as administered by the Regional Director General, Environment Canada, Prairie and Northern Region. These funds shall be available for the storage and disposal of refrigerants in the possession of Environment Canada, or other work that will benefit the environment.
COMPLIANCE SCHEDULE
Sherritt agrees that it shall comply with the measures, terms and conditions of this Agreement within nine months of the execution of this agreement.
VERIFYING COMPLIANCE WITH THIS AGREEMENT
The Parties agree that the Environment Canada will supervise and monitor compliance with this Agreement.
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
Sherritt agrees that it shall submit progress reports on how Sherritt is meeting the terms and conditions specified within this agreement for each ninety (90) day period, beginning December 1, 2001 until the termination of this Agreement. All reports required to be submitted under this Agreement will be delivered to Environment Canada within seven (7) days of the end of a reporting period.
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 Sherritt.
Sherritt agrees that all progress reports shall be signed by an officer of the corporation duly authorized to sign on its be half.
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 progress report will be made available to the public and to the court in accordance with Sections 300(2) and 301. Interim progress 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 in the event of any violation of the requirements of this Agreement.
PENALTIES
Failure on the part of Sherritt and its responsible officials to comply with the provisions this Agreement is an offence under section 272 (1) (e) of CEPA, 1999. Sherritt and its responsible officials may also be prosecuted on the original offence 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 Sherritt and/or its responsible officials fail to comply with the stipulations of this Agreement, Sherritt 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 Sherritt or any entity controlled by Sherritt that causes or may cause a delay in compliance with any provision of this Agreement. If a Force Majeure event occurs, Sherritt shall notify the Attorney General of Canada in writing as soon as practicable, but in any event within seven days of when Sherritt 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 Sherritt will not be able to comply with this Agreement.
In the event that a Force Majeure occurs, Sherritt shall bring an application to vary in accordance with Section 303 of CEPA, 1999. The application shall be made by Sherritt to the Attorney General of Canada and Sherritt 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 Sherritt is 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.
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 regulations, and any definitions that apply to this Agreement are those provided for in CEPA, 1999 and its regulations, and those also specified in this Agreement.
WARRANTY
Sherritt 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
Sherritt certifies that on the date of the coming into force of this Agreement, there is no specific direction in existence requiring Sherritt 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.
Sherritt further certifies that moneys expended on fulfilling the alternative measures does not come from government financial grants.
Sherritt also certifies that the person whose signature appears below is an officer of the corporation who has been duly authorized to sign this Agreement and bind the corporation.
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 or otherwise in accordance with the applicable provisions of CEPA, 1999.
ASSIGNMENT
This Agreement shall not be assigned without written consent.
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 Sherritt:
Carscallen Lockwood LLP
Barristers & Solicitors
1500 - 407 - 2nd Street S.W.
Calgary, AB T2P 2Y3
Attention: Geoffrey D. Baker
Fax: (403) 262-3775
To the Attorney General of Canada:
Department of Justice
Edmonton Regional Office
211 Bank of Montreal Bldg.
10199 - 101 Street
Edmonton, Alberta T5J 3Y4
Attention: Wesley W. Smart
Fax: (780) 495-4915
To Environment Canada:
Peter Blackall
Regional Director, Environmental Protection
Environment Canada
Room 200, 4999 - 98 Avenue
Edmonton, Alberta
T6B 2X3
Fax: (780) 495-2451
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 28th day of September, 2001.
SEALED, ATTESTED TO AND DELIVERED on behalf of Sherritt by
Per:
_____________________________
Name: Barry L Hatt
Title: Senior V.P. Oil & Gas
EXECUTED on behalf of the Attorney General of Canada
__________________________________
Wesley W. Smart
Agent for the Attorney General of Canada
- Date Modified: