The Trans-Pacific Partnership (“the TPP”) is a free-trade agreement that proposes to liberalize trade and investment between 12 Pacific Rim countries. The rationale for most free-trade agreements is to allow different countries to exchange goods and services without or at a reduced tax, which, in the lexicon of trade, is known as a tariff. Although present trade agreements are negotiated by government officials, this was not always the case. In fact, the origins of trade can be found in spice markets. Spice markets were public places where people of different regions came to a common area to trade in the spices, textiles and other specialities of their region. Yet another concept important to understanding trade is that of the nation-state. Without borders defining the contours of a particular country, there is no need for agreements to define what is allowed in or out of a particular area. The first trade agreements were “bilateral” , involving two countries. Modern trade agreements are often multilateral, involving many countries. The TPP then, is a multi-lateral trade agreement that cover various goods and services, including those affecting the environment.
In the preamble of the TPP, the countries who are party to it (“the Parties”), agree to “Promote high levels of environmental protection, including through effective enforcement of environmental laws, and further the aims of sustainable development, including through mutually supportive trade and environmental policies and practices”1. Further, the Parties commit to effectively enforce environmental laws and not change or repeal environmental laws in order to attract trade. To meet these objectives, there are 3 main mechanisms by which the TPP affects the environment:
- Implementation of environmental laws to support multilateral environmental agreements;
- The liberalization of environmental goods and services; and
- Regulation of fisheries and wildlife species.
Implementation of environmental laws to support multilateral environmental agreements
Multilateral environmental agreements are those often negotiated by the United Nations which are comprehensive in jurisdictional coverage and aim to achieve ambitious environmental results. However, they all too often lack effective enforcement mechanisms. The TPP seeks to fill this enforcement gap by requiring TPP signatories to enact domestic legislation to support multilateral environmental agreements. Those supported by the TPP include:
- The Montreal Protocol on Ozone Depleting Substances
- The Convention on International Trade in Endangered Species of Wild Fauna and Flora (aka CITES)
- The International Convention for the Prevention and Pollution from Ships, 1973 (aka MARPOL)
Liberalization of environmental goods and services
In terms of liberalization of environmental goods and services, the TPP will allow for environmental services to be traded between pacific rim countries without a tariff. This means that a small environmental consulting firm based from Toronto would be able to provide services in Tokyo without incurring an extra tariff.
The regulation of fisheries and wildlife species
The TPP requires the establishment of a fisheries management system with the goal of reducing over-fishing or the catching of non-target species, the end of government aid for fisheries that are already over-fished and mechanisms to end illegal fishing. Species-specific protections are also made for sharks, turtles, seabirds and other keystone marine species.
Considering these mechanisms which appear to reinforce environmental protections, why has the agreement garnered so much controversy? A main answer lies in the establishment of Investor-State Dispute Settlement System (ISDS), which is a type of court that will decide on how different countries are meeting their obligations under the TPP. Judgement will be made by lawyers, not judges. It is further unclear how these lawyers will be chosen, what jurisprudence they will use and how appeals may be processed. The methodology by which the ISDS under the TPP will balance the requirements needs of economic liberalization with environmental protections is unclear and is a major source of consternation for those concerned with issues affecting the environment.
TPP signatories have promoted the agreement as being the first trade deal of its kind to incorporate broad-ranging protections for the environment, such as support for multilateral environmental agreements, the liberalization of environmental goods and services and the regulation of fisheries and wildlife species. The agreement is signed and government leaders must now persuade their citizens of the benefits of the agreement. A major area of contention for those citizens concerned with environmental issues is the establishment of ISDS, how this agreement will serve to reinforce environmental protections. In most countries, public consultations on the ISDS, environmental protections and a whole range of other issues touched upon by the TPP are now being conducted.
Who doesn’t have old computers, tablets and phones sitting around and waiting to be recycled? With an ever growing list of electronic products, disposing of them is becoming a major environmental issue. Some countries have legislated on this, WEEE in Europe being the most well known. Other parts of the world have proposed voluntary standards such as R2 or ARPE. Regulation and industry standards for electronic waste are more critical than ever as the world now produces over 50 million tonnes of e-waste every year and this is expected to grow by another 30% in the next couple years
What these standards have in common is desire to manage electronic waste in an environmentally sound way. To help manage all the risks and issues related to waste management, these standards often recommend adopting an environmental management system such as ISO 14001, or a system based on the standard. Within these environmental standards there is a requirement to comply and manage legal requirements.
For example, R2 claims it ‘is the leading standard for electronics repair and recycling’ and that it “provides a common set of processes, safety measures, and documentation requirements for businesses that repair and recycle used electronics. R2 is rigorously and independently audited, emphasizing quality, safety, and transparency. Over 530 facilities are currently R2 certified in 21 countries, with more added every day.”
It goes on to require, in section 3(a),
“An R2:2013 electronics recycler shall develop a legal compliance plan to maintain full compliance with all environmental, health, safety, and data security legal requirements applicable to its operations, as well as full compliance with all applicable import and export laws covering shipments of FMs and shipments of untested or non-functioning equipment or components containing FMs. This plan shall be included as a section of its EHSMS.“ https://sustainableelectronics.org/
In Europe, the WEEE directive is the benchmark for electronic waste management.
In a similar vein, Waste Electrical and Electronic Equipment Directive (WEEE Directive) is the European Community directive 2012/19/EU on waste electrical and electronic equipment (WEEE) which, together with the RoHS Directive 2002/95/EC, became European Law in February 2003. The WEEE Directive set collection, recycling and recovery targets for all types of electrical goods, with a minimum rate of 4 kilograms per head of population per annum recovered for recycling by 2009. The RoHS Directive set restrictions upon European manufacturers as to the material content of new electronic equipment placed on the market. Wikipedia.
These EU level directives have been adopted by all the member countries and are being implemented in various fashions across the board.
In Canada, Nimonik works with a number of electronic recycling organisations to help them ensure they are respecting environmental law. The EPRA association has developed standards and for electronic recyclers and part of the standards requires them to monitor regulatory change and ensure they are compliant. Nimonik works closely with these organisations to help them meet the requirements of ERPA on an ongoing basis. As electronic waste continues to grow, adopting strong management practices for ongoing compliance will become absolutely essential, Nimonik is here to help.
We are pleased to announce an update to NimonikApp.com to help you conduct audits and inspections more efficiently.
You can now select multiple Audit Templates and merge them into a single audit. Are you inspecting a Louisiana Facility? Merge Federal, State, Municipal and even Corporate and Industry requirements into a single audit protocol!
Filter Audit Items by Status
You can now filter Audit Questions by status, helping you quickly find any item that might be Un-Audited or a specific item that you know is non-conforming.
Last month, I attended the excellent Auditing Roundtable conference in Phoenix, Arizona. At the event, the lawyer Tim Wilkins from Bracewell gave a fascinating presentation of the legal complexities of the US EPA’s Next Generation compliance program. It should be noted that the program will focus on high impact industries with high risk for spills and leaks – think oil and gas, chemicals, and similar types of operations.
The United States Environmental Protection Agency (EPA) defines the program components as follows:
- Design regulations and permits that are easier to implement, with a goal of improved compliance and environmental outcomes.
- Use and promote advanced emissions/pollutant detection technology so that regulated entities, the government, and the public can more easily see pollutant discharges, environmental conditions, and noncompliance.
- Shift toward electronic reporting to help make environmental reporting more accurate, complete, and efficient while helping EPA and co-regulators better manage information, improve effectiveness and transparency.
- Expand transparency by making information more accessible to the public.
- Develop and use innovative enforcement approaches (e.g., data analytics and targeting) to achieve more widespread compliance.
The key element that Tim Wilkins addressed was the legal implications of the monitoring tools that were being deployed to high impact and high risk industries. Many permits issued to companies are based on modelling of emissions, not on actual measurements. This means that a company can respect its parameters and models, but if it actually exceeds the limits set in a permit or a regulation and the infraction is detected by the EPA’s new monitoring tools, it can be liable for a fine.
The EPA has explicitly said that it will use ‘any credible evidence’ to pursue polluters; this will likely be heavily based on monitoring tools, video footage and sampling. This will put increased pressure on companies with high risk activities to implement very strict and very robust controls to avoid any chance of exceeding their permitted limits as they will be more likely to be caught under the new EPA monitoring procedures.
The recent case of Volkswagen and their cheating software to change emissions during testing by the authorities reinforces the direction the EPA will take: more random testing with actual real-life monitoring programs. It will not be enough to pass a ‘test’ under specific pre-defined conditions; your operations will need to be constantly compliant in real-world environments. Testing now shows that 97% of diesel vehicles do not respect regulatory emissions standards.
Furthermore, companies will need to adopt the same or similar technology to the EPA to ensure that they know where their leaks or emission variations might lie. By installing their own air, waste and water emissions monitoring tools, they may be able to catch excess emissions before the EPA does and implement procedures to avoid undesirable pollution.
Another big element of the EPA’s program is to push for more publication of data. Their motivation is quite simple: shame. If they publish emissions and other environmental data in an open and publicly available format, companies that break the law (or even pollute a great deal while not breaking the law) will be exposed to bad publicity, further motivating them to improve their environmental practices.
Tim Wilkins also mentioned during his talk that more and more companies are leveraging the power of access to information requests and the freedom of information act to identify monitoring methods and issues at their competitors. With these types of requests you could foreseeably see how a competitor has been fined or monitored for environmental issues and use that information to improve your public standing and also inform your environmental programs and monitoring strategies to avoid facing similar issues with the EPA.
A further point was that it is absolutely critical to create a paper trail to demonstrate to the EPA that progress is being made and that there is a concerted effort to respect permitting and regulatory requirements. It will be fascinating to watch the integration of monitoring tools with regulatory updates and permitting limits in the next few years as companies gear up to deal with further EPA restrictions. This is well aligned with consumer trends towards the Internet of Things and connected devices.
A significant question that Tim Wilkins from Bracewell left the audience with was, “How do indemnity clauses in contracts apply in a world where respecting permitting limits and regulatory requirements is not enough?” What do you do if you purchase a plant that respected the regulatory requirements, but is then found to be out of compliance by the EPA’s Next Generation program? Is there an indemnity to be paid by the seller even though they respected the law? This question will certainly be clarified by the courts in the years to come and hopefully companies will continue to invest in their environmental compliance and especially their monitoring tools.
Recently proposed Regulations under the Environmental Violations Administrative Monetary Penalties Act (“EVAMPA”) would add administrative monetary penalties to the toolkit for enforcing Canada’s flagship environmental law, the Canadian Environmental Protection Act, 1999 (“CEPA”). Maritime industry should be aware of potential new fines for environmental non-compliance, particularly regarding hazardous materials shipping, manifests, and disposal at sea.
The proposed Environmental Violations Administrative Monetary Penalties Regulations (the “proposed Regulations”) would create an administrative monetary penalty (“AMP”) regime for six environmental Acts, including CEPA, and some associated regulations. An AMP is a mid-range compliance tool, positioned between a written warning and prosecution. AMPs issue a fine to the offender but do not lead to prosecution. AMPs are similar to the tickets issued under the Contraventions Act yet cover a broader scope of regulatory offenses.
An AMP regime has already existed in the maritime industry for several years, in the form of the Administrative Monetary Penalties and Notices (CSA 2001) Regulations under the Canada Shipping Act (“CSA”). The proposed AMP regime under EVAMPA would establish fines in the same monetary range as those under the CSA. However, the proposed Regulations would create a different method of calculating the amount of the AMP and hold owners and operators to a different liability standard.
Under the proposed Regulations, violations would be classified into three types: Type A (minor or administrative non-compliance); Type B (non-compliance that creates a risk of harm to the environment or an obstruction of authority); and Type C (non-compliance that harms the environment). A baseline penalty amount for each type could be added upon if any of the following aggravating factors apply: history of non-compliance, environmental harm, or economic gain.
An important difference between the AMP regime under the CSA and the proposed AMP regime under EVAMPA is the treatment of continuing violations. The CSA AMP regime allows an offender to be fined the maximum AMP amount per day a violation occurs in cases of only a select few violations. In contrast, an offender may potentially be fined the maximum AMP amount per day the violation occurs for any violation covered under the EVAMPA regime. The maximum AMP amount under both regimes is $25,000 in the case of a ship or vessel.
EVAMPA determines the liability of owners, operators, masters and chief engineers of ships and vessels at section 8 (2) and (3). Corporate directors or officers who own or operate a ship may be held liable for an AMP if they “directed or influenced the corporation’s policies or activities” leading to the violation. Similarly, “If a ship or vessel commits a violation and the owner, operator, master or chief engineer of the ship or vessel directed, authorized, assented to, acquiesced in or participated in the commission of the violation” the individual can be issued an AMP even if the ship is not issued one.
Under the proposed Regulations, a review of an AMP may be requested on behalf of a ship or vessel by the owner, operator or master, or an authorized representative of the owner or operator. Due diligence is not an permissible defence.
The proposed Regulations designate AMPs for provisions specifically of interest to the maritime industry, such as the disposal reporting requirement found at CEPA section 130(A) and the manifest requirements found in the Interprovincial Movement of Hazardous Waste Regulations. Also of particular interest to the shipping industry are the designated provisions of the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations and the Federal Halocarbon Regulations. Notably, the Disposal at Sea Regulations under CEPA are not covered by the proposed Regulations.
AMPs have become an increasingly popular form of environmental enforcement at both the federal and provincial level. Stakeholders in shipping have a unique industry perspective and may provide feedback on the proposed Regulations until June 8, 2016. Further information on the proposed Regulations, and the procedure for submitting comments, is available in the original Canada Gazette publication, here.
— Huffington Post (@HuffingtonPost) March 22, 2016
Businesses like Levi’s, David’s Tea and Stella Artois made quite a splash this past World Water Day (March 22nd) by showcasing their water-saving strategies on social media platforms such as Twitter, Facebook and Instagram. In honour of World Water Day, the Nimonik team is highlighting how businesses use technological innovations in legal tracking to achieve sustainable water management.
Platforms like Nimonik can improve an organization’s environmental accountability while saving time and money in the process. Whether it be a mining site, a governmental department or a university, water consumption can have lasting impacts on an organization’s environmental footprint. For businesses in Canada, a country known for its abundant water resources, staying on top of changes in environmental law is too often left as a low-level priority.
Environmental laws and regulations in Canada, specifically pertaining to water, have gone through significant changes in the past five years. Under the previous government, laws involving water conservation were simplified in 2012 to reduce regulatory redundancies with the provincial governments. This led to greater leniency in the Environmental Assessment Act, the Fisheries Act, the Navigable Waters Protection Act and the Species at Risk Act, among others. Ultimately, the regulatory burden has shifted from the federal government to the provinces, giving the latter more power to implement and enforce environmental legislation.
An outcome of this legal development has recently taken place in British Columbia, where the new “Water Sustainability Act” came into force February 29, 2016. This new regime for water management in the province replaces the former “Water Act” and now includes the regulation of groundwater, requiring all users of non-domestic (anything other than household use) groundwater to possess a license. For a list of other significant changes within the Water Sustainability Act, you can sign up to Nimonik’s legal updates service or begin a 20-day trial account.
Understanding changes in environmental law and maintaining compliance is critical for businesses seeking sustainability. Businesses have a key role to play in how society chooses to manage the invaluable natural resources we have left – water being no exception. Ultimately, businesses are held accountable for meeting their financial, social and environmental obligations. Technological advancements, as showcased by the Nimonik platform, give businesses the tools they need to emerge as leaders in environmental sustainability.
“We must always remember that business cannot succeed in a society that fails.”
– Kofi Annan, former United Nations Secretary General
“As we think about this crisis…we should think about how we can create a global economic architecture which works better, for more people, in a more sustainable way.”
– Joseph Stiglitz, former World Bank Vice President
Nimonik is very pleased to announce that John Wolfe has joined its organization as an advisor and a partner.
John Wolfe was most recently the Senior Director of Operations Integrity Audit, reporting directly to the Chair of the EHSD Committee of the Suncor Energy Board of Directors; responsible for operational risk identification, audit and assessment, and related governance programs for Suncor’s onshore and offshore operations around the world.
He is an internationally recognized expert in the fields of HSEQ lean management systems (process safety inclusive) (design, implementation and assessment), risk management, training and competence, emergency response, regulatory compliance, and audit and governance; working with many of North America’s leading companies.
He has worked with leading companies such as Imperial Oil, Enbridge, TransCanada, West Coast Energy, Union Gas, Suncor, Petrotrin, SABIC (21 petrochemical companies in Saudi Arabia), Ontario Hydro, Manitoba Hydro, SaskPower, Darlington, Pickering and Bruce Power, Atomic Energy of Canada, CN Rail, Holcim, and GM. Prior roles included senior management positions with ERM (Partner), Boart Longyear, (EHS Director), ICF Kaiser Canada (VP) and the Canadian Standards Association where he directed the Standards Division, managing some 5000 volunteer experts serving on over a 1000 active technical committees in 20 different technology areas.
To contact Nimonik and discuss ways John and the team can help you meet EHS and Risk management requirements, please email Luciano Ciccone, Head of Sales, at email@example.com or contact us at 1-888-608-7511
John Wolfe can be contacted at firstname.lastname@example.org
MONTRÉAL, Canada — March 21, 2016— Nimonik, the leader in mobile solutions for environmental, health and safety legal compliance, has acquired Conformance Check inc., a twenty year veteran of legal compliance regulatory analysis. After three years of fruitful collaboration, the team at Conformance Check and their clients join Nimonik to help grow NimonikApp.com and its companion mobile solutions on iOS and Android.
Jonathan Brun, founder and CEO of Nimonik stated: “This acquisition will allow Nimonik to offer a fully integrated compliance solution with both regulatory content and cutting edge technology to companies in Canada and the United States. The years of experience at Conformance Check will help inform the direction and development of current and future Nimonik products.”
Robert Kolanko, Vice-President, Regulatory Compliance Technology Development & Integration and former Chief Operating Officer of Conformance Check explains: “Conformance Check’s history of supplying compliance assurance solutions to top corporations in North America will be enhanced by incorporating Nimonik’s state of the art web and mobile solutions. The combination of our companies’ top talent will provide unparalleled solutions for regulatory compliance assurance.”
The transition of over 50 000 regulatory requirements for Canadian provinces and territories, numerous municipalities and US states to the Nimonik platform will take place over the coming months.
About Conformance Check
Conformance Check has offered an environmental, health, and safety compliance tool and information database since 1992. Their content and technology has been a leader in the North American market with coverage encompassing legislative federal requirements for US and Canada, all Canadian provinces, and most U.S. states, providing a comprehensive solution to North American companies such as TransCanada, Imperial Oil and SNC Lavalin.
Established in 2008, Nimonik offers web and mobile solutions to environmental, health and safety and quality managers in over 25 countries for over 125 jurisdictions. Nimonik’s solutions offer access and updates to regulatory requirements, industry best practices and international standards along with software to track, monitor and report on compliance performance. Nimonik solutions are used by companies such as L’Oréal, Glencore Mining, FedEx and other Fortune 500 companies to ensure EHSQ compliance.
Nimonik is pleased to announce a free upgrade to our EHS and Quality Android Auditing App (version 1.6.5). It contains the following upgrades :
- Auditors and Auditees are now listed in alphabetical order in all drop-down menus;
- There is a left hand menu on the Tablet version of the app to navigate through Audit Items and see completion rate of questions;
- Quickly see when an Audit is complete;
- Issue an Audit Report without completing an Audit;
- Automatic saving of Findings, Corrective Actions and other audit information without having to tap save; and
- Various small bug fixes.
Since the Immigration Reform and Control Act of 1986 (IRCA), employers are now required to verify that all newly hired employees present “facially valid” documentation verifying the employee’s identity and legal authorization to accept employment in the United States
The I-9 Employment Eligibility Verification Form is intended to validate identity and employment authorization in the United States of America for every employee hired by an organization after November 6, 1986 – both citizen and non-citizen.
Employers must ensure that the most recent version of the I-9 form is completed for each newly hired employee within the first 3 business days of the employee’s first day of work. Both employees and employers are required to complete the document with information pertaining to worker citizenship or alien registration status, and document review examination performed by the employer. Employers must then keep and store the completed I-9 form for 3 years, or one year after employment is terminated, whichever is later.
Enforced by Department of Homeland Security, United States Citizenship and Immigration Services, the I-9 form must be made available by the employer for inspection by U.S. Government officials from the Departments of: Homeland Security, Labor, and Justice.
Failure to complete a form or other related violations and non-compliances for every employee may result in the substantial fines and prosecution of companies and hiring managers:
Avoid exposing your company to unnecessary financial and legal penalties with the I-9 Form U.S. Employment compliance checklist to help you through the I-9 process and forms. Demonstrate compliance during an audit with Nimonik’s easy-to-use platform and reporting features. Start your Free 20 day Trial at NimonikApp.com!
The English and Spanish versions of the I-9 form are available at: http://www.uscis.gov/