Voluntary Environmental Standards
and the Engineering Profession

Environmental Standards:
The Distinction between Mandatory and Discretionary

By: Ronald S. Girvitz, B. Admin., P.Eng., LL.B

CHAPTERS 1 & 2 (combined)

Today’s professional engineers are faced with a variety of environmental standards addressing topics such as ethics, general standards of conduct and specific practice areas. The difficulty often faced by these engineers is to ascertain which of these standards warrant serious attention and which exist merely for their consideration.

The engineer’s first and foremost responsibility is to rely upon his or her professional judgement and apply standards which are reasonable and effective. The following chapters of this monograph will discuss many of these standards which the engineer ought to consider for implementation.

Notwithstanding the above, many engineers will look to consequences to determine which standards they would consider implementing. From this perspective, many engineers will discern standards which are mandatory only because of the sanction imposed for their breach. The purpose of this chapter will be to examine the various forms of environmental standards which an engineer might face and to discuss the potential implications for a failure to comply. From this, a decision maker can then weigh the consequences and determine a suitable course of conduct. From a review of the consequences of a failure to comply, a distinction can be drawn between those standards which ought to be considered mandatory and those which are merely discretionary based on the type and severity of sanctions which are attached to each.

1. ENVIRONMENTAL STANDARDS SET BY ENGINEERING ASSOCIATIONS

The first place to examine standards affecting the engineering profession is to look to the standards set by the engineering associations themselves. Because of the importance of the role an engineering association plays in the regulation of the conduct of engineers, the nature of the organization, how standards are enforced and the types of standards engineering associations set which relate to environmental practice shall first be reviewed.

1.1 What Is A Professional Association

Engineering is considered to be one of the "pure" professions owing to its responsibility for public health and safety. For this reason, provincial legislation is responsible for the creation of the profession and governs its existence. A profession is an occupation characterized as one having the following characteristics:

• the work performed in the occupation is skilled or specialized with a strong intellectual component. Usually a significant period of technical training is required.

• a professional is expected to be committed to moral principles which go beyond the duty of honesty. This duty may, in fact, transcend the duty to the client, as in the case of the lawyer whose duty of forthrightness to the court may result in disclosure of matters adverse to his client's interest. In general, a professional has, and is seen to have, a duty to the wider community.

• a professional usually belongs to an association which restricts admission and sets codes of conduct and ethical behaviour, and has mechanisms for enforcing them.

Professional organizations were created primarily because of the potential effect on life, health safety or property of the public by professionals, and the need to set standards and controls on the actions of these professionals. These organizations are typically granted the right to self regulate their members. The organization sets requirements which must be met for a person to gain admission into the organization. Also, the organization sets standards which are intended to ensure that its members adhere to certain practices, which primarily relate to the protection of the public.

Engineering associations are examples of professional organizations created to help ensure the protection of the public. To facilitate this protection, the engineering organization is granted the right of self regulation and exclusivity of practice. Self regulation includes the ability to set admission standards to gain membership and the ability to set and enforce practice standards. Any failure by a member to practice in conformity with these practice standards could subject that member to internal disciplinary proceedings.

Exclusivity of practice refers to the ability of a professional organization to restrict practice only to its members. Any person engaging in an activity that falls within the definition of the "practice of engineering" must be a member of the requisite engineering association. Practicing engineering without such membership is considered an unlawful act.

1.2 How Engineering Associations Enforce Standards

Disciplinary committees determine whether actions of a member have fallen below the acceptable standard. The standard is typically referred to as "unskilled practice" or "professional misconduct." For example, the Association of Professional Engineers, Geologists and Geophysicists of Alberta ("APEGGA") relies on the following standards to determine whether disciplinary actions are required. Specifically, any conduct which:

1. is detrimental to the best interests of the public,

2. contravenes a code of ethics of the profession established under the regulations,

3. harms or tends to harm the standing of the professional generally,

4. displays a lack of knowledge of, or lack of skill, or judgement in the practice of the profession, or

5. displays a lack of knowledge of, or lack of skill, or judgement in the carrying out of any duty or obligation undertaken in the practice of the profession,

constitutes unskilled practice or unprofessional conduct and invokes the disciplinary process.

When a disciplinary committee finds that the impugned conduct constitutes unskilled practice or professional misconduct, the committee is typically granted a wide range of remedies for rehabilitating or punishing the member, the most serious being revocation of membership.

1.3 Types of Standards Set by the Engineering Organization

1.3.1 Code of Ethics

The most visible standard of conduct set by the organization is its Code of Ethics. A code of ethics is the standard by which an engineering organization helps to ensure that the conduct of its members is maintained at an acceptable standard. Its primary purpose is to protect the public but also serves to promote competence and integrity. As discussed, a breach of any one of the codes will constitute unskilled or unprofessional practice.

Various codes of ethics used by Canadian engineering associations reflect environmental standards. Rule 1 of APEGGA's Code of Ethics specifies that:

"Professional engineers, geologists and geophysicists shall have proper regard in all their work for the safety and welfare of all persons and for the physical environment affected by their work"

The statement is elaborated upon by APEGGA as follows:

"They shall not complete, sign or seal plans or other documents that, in their professional opinion, would result in projects hazardous to the public or detrimental to human welfare, would have unnecessary adverse effects on the environment or do not conform to current engineering, geological or geophysical standards."

A somewhat different wording is found in the British Columbia Code of Ethics:

"Hold paramount the safety, health and welfare of the public, and protection of the environment and promote health and safety within the work place."

The Canadian Council of Professional Engineering (the "CCPE") provides similar language to the British Columbia approach in its Code of Ethics and interprets "paramount" as follows:

"The meaning of "paramount" in this basic tenet is that all other requirements of the Code are subordinate if protection of public safety, the environment or other substantive public interests are involved."

It is incumbent upon any practicing engineer to understand and ensure compliance with the applicable engineering Code of Ethics. Failure to comply can result in disciplinary action and subject the engineer to a wide variety of sanctions, the most serious being a revocation of membership requiring the engineer to refrain from practice.

1.3.2 Practice Standards

In addition to a code of ethics, engineering associations frequently issue practice standards which set specific performance criteria. Similar to the code of ethics, a breach of a practice standard will likely result in internal disciplinary action. The facts of any particular situation will dictate the seriousness of the breach and what remedy might be imposed. It should be noted that the same scope of remedies are available for a breach of a practice standard as for a breach of the code of ethics.

The first environmental practice standard issued in Canada by an engineering association occurred in June 1994 with APEGGA’s publication of an environmental practice standard entitled, "Environmental Practice - A Guideline" (hereafter referred to as the "Guideline"). The Guideline was prepared because of the recognition of the relationship between environmental degradation and its effects on the health and safety of the public. For this reason, APEGGA determined that guidance should be provided to its members on sound environmental management approaches. This would help APEGGA members to contribute actively to the protection and well being of the public, while still participating in their capacity of promoting economic development. A summary of the Guideline is presented below. Other engineering associations across Canada including the CCPE have followed suit and published their own versions of environmental practice guidelines.

Depending of the facts of a situation, a breach of a practice standard can easily constitute a "lack of skill or judgement" sufficient to constitute unskilled practice or unprofessional conduct and subject that member to the internal disciplinary process. An engineer should be aware that a breach of a practice standard can be held to be of equal seriousness to a breach of the code of ethics.

Summary of the APEGGA Environmental Practice Guideline

Professional engineers, geologists and geophysicists are committed to environmental protection and safeguarding the well-being of the public.

Professional Engineers, Geologists, and Geophysicists:

1. Shall develop and maintain a reasonable level of understanding of environmental issues related to their field of expertise.

2. Shall use appropriate expertise of specialists in areas where the member's knowledge alone is not adequate to address environmental issues.

3. Shall apply professional and responsible judgement in their environmental considerations.

4. Shall ensure that environmental planning and management is integrated into all their activities which are likely to have adverse environmental impact.

5. Shall include the costs of environmental protection and/or remediation among the essential factors used for evaluating the life-cycle economic viability of projects for which they are responsible.

6. Shall recognize the value of waste minimization, and endeavour to implement the elimination and/or reduction of waste at the production source.

7. Shall cooperate with public authorities in an open manner, and strive to respond to environmental concerns in a timely fashion.

8. Shall comply with legislation, and when the benefits to society justify the costs, encourage additional environmental protection.

9. Are encouraged to work actively with others to improve environmental understanding and practices.

2. ENVIRONMENTAL STANDARDS SET BY LEGISLATION

2.1 General Standards Of Conduct

All environmental legislation, whether provincial or federal in jurisdiction, impose a general standard of conduct with penalties for their breach. For the purposes of this Chapter, a general review of the various types of environmental offenses will be offered, followed by the type and severity of sanctions which are available for their breach. An engineer must be aware of the severity of sanctions available for a breach of legislated conduct in order to ensure these requirements are placed in their proper perspective.

The common law has long recognized a distinction between "criminal" (or mens rea) offenses and "regulatory" offenses. Criminal offenses are those crimes which are primarily found in the Criminal Code while regulatory offenses are primarily found in legislation (enacted by either provincial legislatures or federal parliament). Regulatory offenses are further divided into two categories: strict liability offenses and absolute liability offenses.

2.1.1 Criminal Offenses

Criminal offenses or mens rea offenses require two elements to substantiate a conviction:

1. proof beyond a reasonable doubt of the prohibited act (the actus reus) in question; and
2. proof of the requisite mental element (the mens rea).

These crimes are typically signified by either their presence in the Criminal Code or in legislation where explicit requirements of a mental element are included in the offence ("knowingly, intentionally, with intent to..."). The consequences of these offenses are the most serious of all the types of offenses and usually carry a sentence of a high monetary fine (up to $1 million) or imprisonment (up to 2 years) or both.

2.2 Absolute Liability Offenses

Absolute liability offenses are reserved for the least serious offenses. These offenses are utilized for convenience in that the crown does not have a great burden to meet to make out the elements of an offence. The crown need only prove that the prohibited act (actus reus) has occurred beyond a reasonable doubt. The mental element (mens rea) is irrelevant. Once the act is proven, there are no defenses available to an accused as the reasons and circumstances of why the offence has occurred are of no consequence.

The penalties for these offenses are in the form of a small fine (typically up to $1,000) and there is never a possibility of imprisonment. An example of this offence found in the Alberta Environmental Protection and Enhancement Act (the "EPEA") is disposal of waste on highways, on land owned by a local authority, in water, or on land owned by another person.

2.3 Strict Liability Offenses

The middle category, strict liability offenses, comprise the vast majority of environmental offenses. These offenses represent a compromise between the rigorous requirement of proving the mental element (mens rea) offenses and the abolition of any available defenses (absolute liability).

The crown is required to prove the prohibited act (actus reus) has occurred beyond a reasonable doubt similar to an absolute liability offence. The burden then shifts to the accused who must then establish the due diligence defense on a balance of probabilities in order to be acquitted. In the EPEA, the due diligence defense is stated as:

"No person shall be convicted of an offence under section ... if that person established on a balance of probabilities that he took all reasonable steps to prevent its commission."

Even though the burden is shifted to the accused to prove his innocence, this process can withstand an attack from the Charter of Rights.

The vast majority of environmental offenses are strict liability offenses. The typical penalty for a violation of these offenses is a maximum of $50,000 for an individual and $500,000 for a corporation and there is never a possibility for imprisonment.

2.4 Operating Permits and Regulations

In addition to the general standards of conduct imposed by environmental legislation, specific performance standards are usually imposed. These performance standards are typically in the form of an operating permit which sets specific air and water release targets for companies or individuals who are licensed to engage in activities which are held to adversely affect the environment. In addition to operating permits, most environmental legislation also contain regulations which set specific release standards. It is an offence to breach the terms of an operating permit or the regulations.

3.0 ENVIRONMENTAL STANDARDS SET BY INDUSTRY ASSOCIATIONS

There are three major sources of environmental standards set by industry associations in which an engineer might encounter. The first are standards or environmental principles issued by the specific industry to which the engineer practices. Industry associations such as the Canadian Chemical Producers’ Association, the Canadian Association of Petroleum Producers, the European Petroleum Industry Association and many others have complied environmental principles and standards for their constituent members.

The second major source of environmental standards which an engineer might encounter are those issued by the Canadian Standards Association ("CSA"). The CSA is a not-for-profit organization whose primary purpose is to develop standards, certification and testing of products and services for Canadian organizations. The CSA has issued a series of guidelines which pertain to topics such as environmental management systems, risk analysis, environmental auditing, pollution prevention and site assessment. Many of these specific guidelines will be discussed in later chapters. Adherence to environmental standards are not mandatory but serve as useful and information guidelines on how companies can address specific environmental issues.

Similar in nature to the CSA, the third major source of environmental standards are those issued by the International Organization for Standardization ("ISO"). ISO provides standards and guidelines that are developed by representatives from some 118 countries. Once these standards are approved they are intended to be adopted as national standards by each country involved in their development. Some of these internationally adopted standards are known as "specification standards". These standards contain specific requirements that must be met by an organization before they can claim to be in compliance with the standard. Specification standards may be audited by an independent third party so that the organization can prove they are in compliance. This independent audit is usually performed by a registrar. If an organization meets the requirements of the standard the registrar will enter the name of the organization, and the standard it has met, into a register that is open to public inspection. Registrars obtain accreditation from government approved or controlled accreditation agencies such as the Standards Council of Canada.

The set of standards of particular interest are the ISO 14000 series which address such topics as environmental management systems, environmental labeling and life cycle assessment.

4.0 LEGAL IMPLICATIONS OF ENVIRONMENTAL STANDARDS AND PRACTICES

One method to determine the importance of adhering to any one of the environmental standards is to assess the potential consequence for its breach. One approach to considering such consequences is to ascertain how any of these standards might be used in a court of law. There are two circumstances where the provided environmental services might come under such scrutiny. The first is pursuant to an allegation of professional negligence and the second is pursuant to establishing the due diligence defense to a charge of a strict liability offence.

With respect to professional negligence, the general standard by which a professional is held accountable is:

"a duty to exercise the skill, care and diligence which may reasonably be expected of a person of ordinary competence, measured by the professional standard of the time.

In addition:

"The engineer is not obliged to perform to the standards of the most competent member of the profession, unless he so covenants. What is required is reasonable skill, care and diligence as judged by standards of competence in the profession in which he practices". (emphasis added)

The second circumstance pertains to the due diligence defense which is stated by Section 215 of the EPEA as follows:

"No person shall be convicted of [a strict liability] offence ... if that person establishes on a balance of probabilities that he took all reasonable steps to prevent its commission."

The "reasonable" standard has emerged as the standard by which the actions of a professional are most often required to meet in a court of law in response to both an allegation of professional negligence or establishing the due diligence defense. The question then becomes what constitutes "reasonable" and whether the existence of an environmental standard (whether established by a national standards organization, industry association or an engineering association) would contribute to a determination of the "reasonable" standard.

The leading case on the use of professional standards and practice to determine whether a professional was negligent (and hence, fell below the "reasonable" standard) is the Supreme Court of Canada decision of Roberge v. Bolduc. In Roberge, an allegation of professional negligence was considered against a notary as a result of advice given to prospective purchasers of real property that the vendor has good and valid title to the property. The evidence showed that the notary, while following common notarial practice, committed an error in the advice given to his clients. At issue was whether the common notarial practice itself was reasonable. The Court concluded:

"It may very well be that the professional practice reflects prudent and diligent conduct. One would hope that if a certain practice has developed amongst professionals in regard to a particular professional act, such practice is in accordance with a prudent course of action. The fact that a professional has followed the practice of his or her peers may be strong evidence of reasonable and diligent conduct, but it is not determinative. If the practice is not in accordance with general standards of liability, i.e. that one must act in a reasonable manner, then the professional who adheres to such a practice can be found liable, depending on the facts of each case." (emphasis added)

Clearly, the Canadian judiciary has given deference to existing professional practices in determining acceptable standard of conduct. By following accepted and recognized professional practices, a professional can make a strong case that he was acting reasonably. This position is not absolute, however. It is fair to challenge the notion that the existing standards and practices of the profession might themselves, be unreasonable.

The issue remains as to what standards or guidelines might amount to a statement of commonly held professional practice so as to influence the standard of conduct expected of a professional in a court of law. It is suggested that the following indications might influence which type of standard may help comprise the "practice of the profession":

1. who comprises the membership of the organization;

2. does the organization purport to represent the entire industry or are major players not included;

3. have the standards been adopted by major players in the industry who are members of the organization that has issued the standard; and

4. does the organization have exclusivity of practice, implying that if membership is revoked is that party still entitled to conduct its business or remain in the organization?

Some indication of the emergence of what environmental standards might be considered an acceptable practice of the profession is offered in a recent decision of the Provincial Court of Alberta in R. v. Prospec Chemicals Ltd. Propsec was convicted of unlawfully contravening a term or condition of an approval under the EPEA. The Court ordered Propsec to deliver a certified copy of certification under the ISO 14001 Environmental Management System Specification. To ensure its compliance, Prospect was ordered to post a letter of credit payable in the amount of $40,000. The recognition by a Court of the ISO 14001 standard adds some weight to an argument that this standard might emerge as an acceptable practice of the profession.

[Chapters 1-2 ] [Chapter 3]