On March 7, 2011, Environment Canada announced in a press release that it had made a record seizure of approximately 120,000 kg of an illegally imported substance worth over 1 million dollars.
The substance in question is a strictly regulated gas known as chlorodifluoromethane, also referred to as HCFC-22 or R-22, that is used in the refrigeration industry and that is known to deplete the ozone layer.
The company, Gestion Alexis Dionne Inc., and its president, Mr. Alexis Dionne, imported HCFC-22 between September 2008 and June 2009 in contravention of the Canadian Ozone-Depleting Substances Regulations, 1998 and were charged with four counts of illegal importation.
On March 2, with the agreement of the Attorney General of Canada, they signed an Environmental Protection Alternative Measures Agreement (EPAM) as provided under the Canadian Environmental Protection Act, 1999 under which they agreed to forfeit the 5,315 cylinders of HCFC-22 seized at a warehouse in Saint-Jérôme, Québec and to publish an article in a specialized magazine and on the company’s website. The agreement also imposed the immediate voluntary payment of $4,500 to the Environmental Damages Fund.
Gestion Alexis Dionne Inc. and its president must respect the agreement’s conditions in their entirety during a 36-month period or their case will be brought before the court.
Mr. Dionne’s company, which specializes in Chinese importations and conducts business under the name of Votreimportation.com, was not involved in the use or commercialization of HCFC-22. Montréal newspaper La Presse contacted Mr. Dionne who described the importation as “transparent” since the Canadian Customs authorized it, inspected his container and even collected taxes.
But Environment Canada’s Robert Daigle, also contacted by the Montréal newspaper, noted that it is not the Canadian Customs’ mandate to apply the regulations on refrigeration gases. It is the importer’s responsibility to inquire about applicable regulations and not only on the customs aspect of the law.
This case stresses the growing financial and penal liability associated with environmental laws. As in many other business practices, when dealing with certain substances one must be aware of applicable federal and provincial environmental laws such as the 1998 Ozone-Depleting Substances Regulations.
The Canadian Ozone-Depleting Substances Regulations represent Canada’s commitment pursuant to the 1987 Montréal Protocol on Substances that Deplete the Ozone Layer. These regulations control the import, export, manufacturing, use, sale and offering for sale of certain substances such as HCFCs as well as any product that contains or is designated to contain those substances. As of September 2009, the Montréal Protocol had been signed by almost 200 countries and is on its way to accomplish its goal, which is to eliminate ozone-depleting substances. Environment Canada asserts that the production and consumption of these substances have been phased-out by 95% and that with the implementation of the Montréal Protocol‘s provisions, the ozone layer should return to its pre-1980 levels by 2050 to 2075. As for the HCFC-22, the Canadian government aims at a complete elimination by 2030.
Until then, HCFC-22 is still used in products such as residential heat pumps although since January 1, 2010, all new refrigeration or air-conditioning appliances must use another gas. In any case, only certain distributors may import and distribute HCFC-22.
The Ozone-Depleting Substances Regulations also regulate substances such as chlorofluorocarbon (CFC), halon, bromofluorocarbon, bromochlorodifluoromethane (HBFC), tetrachloromethane and 1,1,1 trichloroethane.
Every person who contravenes these regulations commits an offence under the Canadian Environmental Protection Act and is liable to fines of up to 1 million dollars and imprisonment of up to 3 years.