Environmental protection alternative measures agreement: Daniels Sharpsmart Canada Limited

This agreement made as of the 24th day of March 2015.

Between:

The Attorney General of Canada
Of the first part

and

Daniels Sharpsmart Canada Limited
(hereinafter referred to as "Daniels Sharpsmart")
Of the second part

Whereas Daniels Sharpsmart has been charged with alleged violations under the Canadian Environmental Protection Act, 1999 (hereinafter "CEPA, 1999") and the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations (hereinafter the "Regulation");

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 (hereinafter "Measures") would not be inconsistent with the purposes of CEPA, 1999 and the Regulation in this case;

Whereas Daniels Sharpsmart does not deny its participation or involvement in the commission of the alleged offences and accepts responsibility for the above acts;

Whereas Daniels Sharpsmart has had the opportunity to instruct counsel and is represented in this Environmental Protection Alternative Measures Agreement;

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 and the Regulation;

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 Daniels Sharpsmart 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, including the Regulation.

Facts

Daniels Sharpsmart has been charged with the following offences:

Count 1

Daniels Sharpsmart on or about between July 25, 2012 and April 1, 2013 in the City of Brampton, did export shipments of hazardous biomedical waste to Curtis Bay Energy Inc., Baltimore, United States for final disposal without a valid permit, contrary to s. 9(k) of the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations and s. 185(1) of the Canadian Environmental Protection Act, 1999, and thereby committed an offence under s. 272(1)(a) of the Canadian Environmental Protection Act, 1999.

Count 2

Daniels Sharpsmart on or about between December 23, 2012 and April 1, 2013 in the City of Brampton, did export shipments of hazardous pharmaceutical waste to Curtis Bay Energy Inc., Baltimore, United Stales for final disposal without a valid permit, contrary to s. 9(k) of the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations and s. 185(1) of the Canadian Environmental Protection Act, 1999, and thereby committed an offence under s. 272(l)(a) of the Canadian Environmental Protection Act, 1999.

Count 3

Daniels Sharpsmart on or about between July 21, 2010 and April 3, 2013 in the City of Brampton, did export hazardous waste to Curtis Bay Energy Inc., Baltimore, United States without submitting a copy of their Movement Document to Environment Canada within 3 working days of shipping, contrary to s. 11(3) of the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations, and thereby committed an offence under s. 272.1(1)(f) of the Canadian Environmental Protection Act, 1999.

Count 4

Daniels Sharpsmart on or about between July 21, 2010 and April 3, 2013 in the City of Brampton, did export hazardous waste to Curtis Bay Energy Inc., Baltimore, United States without submitting a copy of their Movement Document to Environment Canada within 3 working days of shipping, contrary to s. 11(6) of the Export and Import of Hazardous Waste and Hazardous Recyclable Materials Regulations, and thereby committed an offence under s. 272.1(1)(f) of the Canadian Environmental Protection Act, 1999.

Charges were laid in Brampton, Ontario on July 16, 2014.

Daniels Sharpsmart has been advised and understands that the above noted charges encompass a description of the offences that it is alleged to have committed.

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

Measures

Daniels Sharpsmart has created and implemented and will finalize a standard operating procedure and policy for the management of exportation of hazardous waste applicable to its operations in Canada, as regulated under the Regulation and CEPA, 1999 and provide this finalized standard operating procedure and policy to Environment Canada within four (4) months of the signing of this Agreement.

This finalized standard operating procedure and policy will be incorporated into Daniels Sharpsmart's Environmental Management System within six (6) months of signing of this Agreement.

Daniels Sharpsmart shall continue to develop and deliver Daniels' training program for its transportation staff, relating to environmental issues associated with the export of hazardous waste. A copy of the course outline will be provided to Environment Canada within four (4) months of the signing of this Agreement for approval by the Regional Director of Environmental Protection. The training will be completed within nine (9) months of such approval. Daniels Sharpsmart will provide a list of the people trained to Environment Canada.

Within three (3) months of the signing of this Agreement, Daniels Sharpsmart shall submit for publication by Hazardous Materials Management Magazine or a similar journal acceptable to Environment Canada, an article or paid advertising space describing the merits and necessity of proper documentation in relation to the export of hazardous waste. This article has to be approved by Environment Canada and will be completed within three (3) months of the signing of this Agreement.

Daniels Sharpsmart shall make a voluntary payment of $65,000 payable to the Receiver General of Canada in trust for the Environmental Damages Fund, as administered by the Regional Director General, Environment Canada, Ontario Region.

Compliance schedule

Daniels Sharpsmart agrees to comply with the measures and the 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 CEPA, 1999.

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 Daniels Sharpsmart. Daniels Sharpsmart agrees that these reports shall be signed by an officer of the corporation duly authorized to sign on its behalf.

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 fmancial 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 s. 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 s. 301 of CEPA, 1999. The final report will be made available to the public and to the Court in accordance with ss. 300(2) and 301. Interim reports will not be made available to the public, under ss. 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.

Force majeure

Force majeure is an event resulting from circumstances beyond the control of Daniels Sharpsmart that causes or may cause a delay in compliance with any provision of this Agreement. lf a force majeure event occurs, Daniels Sharpsmart shall notify the Attorney General of Canada in writing as soon as possible, but in any event within seven days of when Daniels Sharpsmart 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 length of time during which Daniels Sharpsmart will not be able to comply with this Agreement.

If a force majeure event occurs, Daniels Sharpsmart shall make an application to vary the Agreement, in accordance with s. 303 of CEPA, 1999. The application shall be made by Daniels Sharpsmart to the Attorney General of Canada, and Daniels Sharpsmart 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 Daniels Sharpsmart be lawfully excused from perfoming 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

Daniels Sharpsmart warrants that the obligations under this Agreement shall be performed by persons who are competent and qualified and who have the appropriate knowledge and skill.

Certification

Daniels Sharpsmart certifies that on the date of the coming into force of this Agreement, there is no specific direction in existence requiring it 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 by any court order. Daniels Sharpsrnart also certifies that the funds used to carry out the alternative measures do not come from government financial grants. Daniels Sharpsmart further certifies that the person whose signature appears below is an agent of the company and is duly authorized to sign this Agreement and bind the company.

Variation of agreement

Any application to vary this Agreement shall be made in accordance with s. 303 of CEPA, 1999. The application shall be made to the Attorney General of Canada, and Daniels Sharpsmart shall send a copy of the application 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 the written consent of the Attorney General of Canada.

Notice

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

To Daniels Sharpsmart:

Dean McPhee
Daniels Sharpsmart Canada Limited
52 Bramsteele Road, Unit 8
Brampton, ON  L6W 3M5
Phone: (905) 793-2966
Fax: (905) 793-2956

To the Attorney General of Canada:

Cindy Afonso, Crown Counsel
Public Prosecution Service of Canada
201 County Court Boulevard, Suite 600
Brampton, ON  L6W 4L2
Phone: (905) 454-4461
Fax: (905) 454-2168

To Environment Canada:

Dave Ross, Enforcement Officer
Environment Canada, Enforcement Branch Ontario Region
3-845 Harrington Court
Burlington, ON  L7N 3P3

Waiver

No condoning, excusing or overlooking by any of the parties of any default by another 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 s. 303 of CEPA, 1999.

In witness whereof the parties have executed this Agreement on this 24th day of March 2015.

Sealed, attested to and delivered on behalf of Daniels Sharpsmart by:

Per:

__________________________
Dean McPhee
Managing Director

Executed on behalf of the Attorney General of Canada

__________________________
Cindy Afonso
Agent for the Attorney General of Canada

Document 782867

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