Environmental protection alternative measures agreement: Italpasta Limited

Whereas Italpasta Limited (ltalpasta) has been charged in connection with an alleged offence 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 Italpasta 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 Italpasta 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. The measures to be undertaken pursuant to this Agreement are for the purpose of bringing Italpasta into compliance with CEPA, 1999 and its regulations.

Definitions

The definitions that shall apply in this Agreement are those set out in CEPA, 1999 and its Regulations. The following definitions shall also apply to this Agreement:

ODS Regulations means Ozone-Depleting Substances Regulations, made pursuant to the CEPA, 1999.

Facts

In 2012, ltalpasta. of 116 Nuggett Court, Brampton, Ontario, arranged for a service provider to fumigate a building using methyl bromide. This methyl bromide had been imported into Canada the year before under a permit issued under the CEPA, 1999. A permit had not been issued for the use of this methyl bromide in 2012, which occurred on June 30, 2012, after the date methyl bromide use in Canada was restricted by subsection 7( I) of the ODS Regulations. Italpasta was charged with one offence under subsection 7(1) ofthe ODS Regulations. Pursuant to paragraph 272(1)(h) of the CEPA, 1999 and section 1 of the Regulations Designating Regulatory Provisions for Purposes of Enforcement, non-compliance with the ODS Regulations constitutes an offence under the CEPA, 1999.

Measures

Pursuant to this Environmental Protection Alternative Measures Agreement, Italpasta shall

  1. arrange for (a) the development of training regarding the use of methyl bromide in the pasta manufacturing context, including the relevant requirements under the CEPA, 1999 and the ODS Regulations, and (b) the attendance, and successful completion (as evidenced by a test), by Italpasta's Technical Director at such training.
  2. circulate to members of the Canadian Pasta Manufacturers- Association information regarding key CEPA, 1999 and ODS Regulations requirements related to the use of methyl bromide in the pasta manufacturing context and the availability of the training described above in Measure 1 (a).
  3. examine its environmental management system to ensure that mechanisms are in place to avoid a similar incident from occurring in the future.
  4. donate $75.000 to the Environmental Damages Fund.

Compliance schedule

Italpasta agrees that it shall comply with the measures, terms and conditions of this Agreement in accordance with the time frames provided for in Schedule I, subject to any amendment agreed to by the Parties to this Agreement.

Verifying compliance with this agreement

The Parties agree that 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

Italpasta agrees that it shall submit progress reports containing the status of each Measure for each ninety (90) day period, beginning October 15, 2014 until the termination of this Agreement. The quarterly report immediately after Measures 1 (a) and 2 are completed shall, respectively, contain a document describing the training with respect to Measure 1 (a) and the text of the information circulated with respect to Measure 2. 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 Italpasta. ltalpasta agrees that all progress reports shall be signed by an officer of the corporation duly authorized to sign on its behalf.

Insurance

Italpasta agrees that:

Within a reasonable time after the execution of this Agreement, Italpasta shall at its sole expense, obtain and thereafter maintain (until its payment under Measure 4 is made) comprehensive insurance in the amount of $75,000.

The insurance shall include coverage for all of Italpasta's financial obligations that derive from this Agreement in the event that Italpasta is declared bankrupt or otherwise cannot meet its financial commitments under this Agreement.

Italpasta shall also obtain coverage insuring against its nonperformance of its other outstanding obligations under this Agreement. Such insurance shall cover all the financial costs that will allow the Attorney General of Canada and/or Environment Canada to contract appropriate persons to fulfill the requirements of this Agreement if Italpasta fails to fulfill the non-payment requirements of this Agreement. The amount of such insurance shall be $25,000. For greater clarity, one or two insurance coverages may be obtained to fulfill the insurance requirements under this Agreement.

The insurance shall be issued by an insurance company or companies which shall be satisfactory to the Attorney General of Canada.

The insurance shall provide that the proceeds under it be made payable to the Receiver General of Canada.

Upon the Attorney General of Canada's or Environment Canada's request, Italpasta shall provide the Attorney General of Canada or Environment Canada with Certificates of insurance or affidavits from the insurance company or companies confirming that the insurance referred to herein is in full force and effect.

Italpasta shall not do or omit to do or allow anything to be done or omitted to be done which will in any way impair or invalidate the insurance referred to herein.

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 Section301 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 !tal pasta to comply with the provisions this Agreement is an offence under section 272 (1) (e) of CEPA, 1999. Italpasta 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 Italpasta fails to comply with the stipulations of this Agreement, Italpasta are liable on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment of not more than three years, and on summary conviction, to a fine of not more than $300,000.00 or to imprisonment for a term of not more than six months or to both.

Force Majeure

A Force Majeure is an event resulting from circumstances beyond the control of Italpasta or any entity controlled by Italpasta that causes or may cause a delay in compliance with any provision of this Agreement. If a Force Majeure event occurs, Italpasta shall notify the Attorney General of Canada in writing as soon as practicable, but in any event within 7 days of when Italpasta 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 wruch Italpasta will not be able to comply with this Agreement.

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

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 ltalpasta 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.

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

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

Certification

ltalpasta certifies that on the date this Agreement comes into force, Italpasta is not required 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. Italpasta further certifies that moneys expended on fulfilling the alternative measures does not come from government financial grants. Italpasta 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.

Schedules

The documents attached hereto as Schedules form an integral part of this Agreement as fully as if they were set forth herein in extenso and consist of:

Schedule I - Compliance schedule

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, I 999.

Assignment

This Agreement shall not be assigned.

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 Italpasta:

Fax: (905) 792-2381
Attention: Frank DeMichino

To the Attorney General of Canada:

Fax: (905) 454-2168
Attention: Cindy Afonso

To Environment Canada:

Fax: (905) 333-3952
Attention: Damian Tam

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 ofthis Agreement in accordance with Section 303 of CEPA, 1999.

Counterparts

This Agreement may be signed in counterparts and each such counterpart shall constitute an original document and such counterparts, taken together, shall constitute one and the same instrument. A Party's transmission by facsimile or electronic mail of this Agreement duly executed by that Party shall constitute effective delivery by that Party of an executed copy of this Agreement.

In witness whereof The Parties have executed this agreement this 15 July, 2014.

Sealed, attested to and delivered by Italpasta Limited

Per: ____________________

Executed on behalf of the attorney general of Canada

Per: ____________________

Schedule I

Timeframe for measures
Measure Timeframe
l.(a) Arrange for the Development of Training September 15, 2014
l.(b) Attend and Complete Training October 31, 2014
2. Circulation of Information to the Canadian Pasta Manufacturers' Association December 31, 2014
3. Re-examine Environmental Management System October 31, 2014
4. Donation to the Environmental Damages Fund July 14, 2015

 

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