Canada: Torys on Environmental, Health and Safety - December 2010


Expert panel releases occupational health and safety recommendations

On December 16, 2010, Ontario's Expert Advisory Panel on Occupational Health and Safety released its report. The panel's recommendations include the following: that the Ministry of Labour (MOL) create legal requirements for the training of all workers in Ontario, their supervisors and all designated workplace health and safety representatives; that a new organization be created within the MOL to establish, implement and audit training standards; and that the MOL develop a regulatory regime for administrative monetary penalties (as opposed to prosecutions), which would be used as an enforcement tool for certain types of offences. For further information, please see the MOL's press release.

REA guidance and regulatory amendments

On December 8, 2010, the Ontario Ministry of Natural Resources (MNR) issued a proposed Natural Heritage Assessment Guide (NHAG). According to the MNR, the NHAG is designed to provide clarity and certainty regarding the Renewal Energy Approval (REA) requirements pertaining to natural heritage assessments. In particular, the NHAG contains technical guidance on natural heritage assessments under O. Reg. 359/09 (the REA Regulation) for renewable energy projects on both Crown and private lands. The MNR will be accepting public comments on the NHAG until January 24, 2011, but has indicated that until the guide is finalized, the criteria and procedures set out in the NHAG will be deemed acceptable for the MNR's review of natural heritage assessments. For further information, please see the Environmental Registry and the proposed NHAG.

On December 20, 2010, the Ontario Ministry of the Environment (MOE) issued amendments to the REA Regulation. As described in Torys' October 2010 EHS Bulletin, the amendments, among other things, revise certain definitions under the REA Regulation; update certain siting and monitoring plan requirements; and provide further detail regarding the requisite consultation with the public and aboriginal communities, municipalities and the Niagara Escarpment Commission.

The MOE expects to publish final versions of its draft REA technical guidance bulletins in early 2011, now that the REA Regulation has been amended. In addition, the MOE expects to release draft guidance on aboriginal consultation for REA project proponents in January or February.

REA appeals

The MOE issued its first three REAs on November 12, 2010, all to wind-generation facilities. The REAs for the smaller two of these facilities (32 and 48 kW, respectively) were not contested, and the applicable appeal periods have now elapsed. However, more than one appeal was filed with respect to the REA issued to the larger, 20 MW wind-generation facility. As summarized on Ontario's Environmental Registry, the alleged grounds of those appeals are

  • a failure to include a traffic management plan for the project;
  • a failure to provide a plan for night lighting that will minimize the impacts on birds;
  • that the REA should not permit the turbines to operate in foggy conditions once fully operational;
  • that the renewable energy project will cause negative human health effects;
  • that the MOE is unable to measure infrasound or low-frequency noise; and
  • that the MOE did not consider its statement of environmental values when issuing the REA.

Amending REAs

The MOE has indicated that REA holders wishing to inform the MOE of a change of name, address or ownership in relation to a REA can follow the guidance that approval holders follow in informing the MOE of these changes in relation to a Certificates of Approval (Air and Noise) issued under the Environmental Protection Act. For further information, please see the MOE's guidance.

The MOE is still considering the threshold at which proposed non-administrative amendments to REAs will be significant enough to require the proponent to prepare and submit additional documentation. For the time being, the MOE will consider applications for amendment on a case-by-case basis.

Deadline for notice allowing extended use of site condition standards

As indicated in the Torys' November 2010 EHS Bulletin, 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 between July 1, 2011 and January 1, 2013. Under section 21.1 of O. Reg. 153/04, property owners must meet certain eligibility requirements and submit a prescribed notice to the MOE before January 1, 2011. Although the MOE's guidance, in some places, suggests that owners can submit a notice (and thus, extend the use of the 2004 standards) only if both a remediation and risk assessment are in progress, owners may submit the notice if they are in the midst of a remediation, a risk assessment or both, provided that all the applicable requirements are met. For further information about the requirements of this notice, please see the MOE's guidance.


Certain provisions of Environmental Enforcement Act enter into force

On December 10, 2010, certain provisions of the Environmental Enforcement Act (the EEA) came into force. The EEA amends nine existing federal environmental statutes, including the Canadian Environmental Protection Act, 1999 (CEPA). The provisions that were proclaimed in force, among other things, expand the factors that a court must consider in imposing a sentence on a person who is convicted of an offence under the CEPA. The court must seek to reinforce the "polluter pays" principle in imposing such sanctions, and it must consider a revised list aggravating factors, such as whether the offender has a history of non-compliance with federal or provincial legislation that relates to environmental or wildlife conservation or protection. Notably, certain provisions that have not yet been proclaimed in force will set new minimum penalties, increase certain maximum penalties and create new administrative penalties under the CEPA and other statutes.

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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