Canada: Torys' Environmental, Health and Safety Bulletin - November 2010

Ontario First Renewable Energy Approval issued; one approval appealed

On November 12, 2010, the Ministry of the Environment (MOE) issued the first three Renewable Energy Approvals (REAs) under Ontario's new approval regime for renewable energy projects. One of the REAs was issued for an 8-turbine, 20 MW windgeneration facility; the other two were issued for small wind-generation facilities (32 and 48 kW, respectively). On issuance, a REA is posted to Ontario's Environmental Registry for 15 days, during which third parties can appeal the MOE's approval decision to the Environmental Review Tribunal.

On November 26, 2010, the REA for the 20 MW wind-generation facility was appealed. According to the notice of appeal, the grounds of the appeal allege (i) a failure to include a traffic-management plan for the project; (ii) a failure to provide a plan for night lighting that will minimize the impacts on birds; and (iii) that the REA should not permit the turbines (which are not permitted to operate while under construction) to operate in foggy conditions once fully operational. For more information regarding this appeal, please see the Appeal Notice.

Open for Business Act, 2010 receives royal assent

The omnibus Open for Business Act, 2010 (the Act) received royal assent on October 25, 2010, although many sections amending the Environmental Protection Act (EPA) and Ontario Water Resources Act (OWRA) have yet to be proclaimed in force. Among other things, the Act will enable a risk-based permitting approach for activities that currently require Certificates of Approval under section 9 (for noise and other air emissions) or 27 (for waste management systems and waste disposal sites) of the EPA or section 53 (for sewage works) of the OWRA. The Act would also establish an online registry for lower-risk activities. Certain of the Act's amendments are already in force, including

  • amendments to the EPA and OWRA that clarify the Director's authority to issue site-wide and multisite approvals and to include terms and conditions in approvals allowing for operational flexibility; and
  • amendments to the EPA and OWRA that expressly authorize provincial officers to require responses to reasonable inquiries made by phone or by other means of communication for the purpose of determining a person's compliance with the EPA or OWRA.

Other amendments have yet to be proclaimed in force, including the following:

  • Sections 9 and 27 of the EPA and section 53 of the OWRA will be amended to require an environmental compliance approval, instead of a Certificate of Approval, before engaging in otherwise prohibited activities. Subject to specified exceptions, the approval requirement would not apply if the prohibited activity has been prescribed by regulations, which have yet to be made available to the public, as an activity requiring registration under the EPA.
  • The processes for applying for these approvals will be consolidated into one process under the EPA.
  • An Environmental Activity and Sector Registry will be established under the EPA. Subject to specified exceptions, if an activity is prescribed under the regulation, persons are prohibited from engaging in the activity at a site unless the activity has been registered in accordance with the regulations, the Director has confirmed registration and the activity is engaged in according to rules prescribed by the regulations.
  • The EPA will be amended to allow a provincial officer to give a notice to a person engaged in a prescribed activity, stating that the officer reasonably believes that the person is contravening or has contravened the regulations. The provincial officer may then require the person to carry out specified measures within a specified period.

For further information, please see the Act.

MOE issues guidance on extended use of site condition standards

The MOE has issued guidance for property owners wishing to use the 2004 Soil, Groundwater and Sediment Standards (the 2004 Standards) for the purpose of filing a record of site condition (RSC) with the MOE between July 1, 2011 and January 1, 2013. Under section 21.1 of O. Reg. 153/04, property owners who wish to use the 2004 Standards for RSCs filed during this period must meet certain eligibility requirements and submit a prescribed notice to the MOE before January 1, 2011. Specifically, an owner must, among other things

  • certify in the notice that a risk assessment regarding a contaminant at the property has been submitted to the MOE and must state the risk-assessment number and submission date;
  • certify in the notice that action has begun to reduce the concentration of a contaminant on, in or under the property in order to meet either a standard specified in a risk assessment or, where no standard in the risk assessment exists, the applicable site condition standard; and
  • include a qualified person's certification that a Phase I Environmental Site Assessment has been completed.

If the notice is not submitted before January 1, 2011, the property owner must use the 2009 Soil, Groundwater and Sediment Standards (which, for many parameters, is more stringent than the 2004 Standards) for the purpose of filing an RSC. The form of the notice can be found on the MOE website.

Ministry proposes updated guidelines regarding birds and bird habitats

The Ministry of Natural Resources has proposed updated guidance on identifying and addressing potential negative effects on birds and bird habitats during the planning, construction and operation of onshore wind-power projects. The proposal has been posted for a 45-day public review and comment period, ending on December 20, 2010. For further information, please see the MNR's Policy Proposal Notice.

Ministry of Labour safety blitzes

The Ministry of Labour (MOL) is undertaking safety blitzes in November and December, focusing on conveyor dangers and mining safety. Inspectors are visiting industrial workplaces to ensure that conveyor systems have proper guarding devices and that they are being locked out when needed; inspectors will also ensure that conveyor workers are protected from developing musculoskeletal disorders. The MOL inspectors are also visiting underground and surface mines to examine equipment worn by workers to protect them against hazards caused by falls, collisions, visibility and atmospheric contaminants.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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