Canada: Environment @ Gowlings: January 7, 2011 - Part 1

Last Updated: January 10 2011

Edited by Harry Dahme

Contents

FEDERAL NEWS

  • Bisphenol A Added to List of Toxic Substances
  • Pollution Prevention Plans for Bisphenol A
  • Additions to Toxic Substances List
  • Proposed Amendment to the Notice requiring the preparation and implementation of pollution prevention plans in respect of specified toxic substances released from base metal smelters and refineries and zinc plants
  • Amendments to the Domestic Substances List
  • Significant New Activity Notice for Aromatic Isocyanate Polymer, Alkoxy-Alkylamine Blocked
  • Passenger Automobile and Light Truck Greenhouse Gas Emissions Regulations
  • Aquaculture in British Columbia Now under Federal Jurisdiction

PROVINCIAL NEWS

ONTARIO

  • Open-For-Business Act, 2010
  • Guideline A-7
  • Waste to Energy Facility Receives Approval
  • Toxic Reduction Act, 2009
  • Bill 72 establishes a framework to foster innovation and to conserve and sustain Ontario's water resources
  • Proposed update to Environmental Noise Guidelines

QUEBEC

  • Québec and GHG Emissions: The Regulation to Amend the Regulation Respecting Mandatory Reporting of Certain Emissions of Contaminants into the Atmosphere is Adopted
  • Water User Fees Come Into Effect
  • Advisory Committee towards Establishing the Next Quebec Climate Change Action Plan
  • Creation of a Certification Program for Products with Recycled Content
  • Recyc-Quebec to be Integrated within MESDP

CASE COMMENT

  • Supreme Court clarifies that Aboriginal consultation (and potentially accommodation) is required in the context of modern land claims treaties

COMMENTARY

  • Analysis of CSA Staff Notice 51-333 Environmental Reporting Guidance

What's Happening



FEDERAL NEWS

Bisphenol A Added to List of Toxic Substances

The Final Order adding Bisphenol A to Schedule 1 to the Canadian Environmental Protection Act, 1999 was published in the Canada Gazette, Part II on October 13, 2010 Volume 144, No. 21, Page 1806.

For further information please see: Canada Gazette, Part II  published on October 13, 2010.



Pollution Prevention Plans for Bisphenol A

The Proposed Notice requiring the preparation and implementation of pollution prevention plans with respect to Bisphenol A and Industrial Effluents was published on October 16, 2010 in the Canada Gazette Part 1, Supplement for a 60 day comment period. The Proposed Notice requires an industrial facility that manufactures or uses Bisphenol A in a quantity greater than 100 kilograms and which has effluent containing Bisphenol A to prepare a pollution prevention plan ("Plan"). Pulp and paper de-inking activities do not require preparation of a Plan. The objective is to reduce Bisphenol A concentrations in effluent to less than or equal to 1.75 ug/l by December 31, 2015. In addition the manufacturer will be required to consider means to minimize Bisphenol A in the effluent. This includes examination of the use of alternatives to Bisphenol Act.

The Plan is to be prepared and to be initiated no later than December 31, 2012 and is to be completely implemented no later than December 31, 2016. Accompanying the Proposed Notice are a number of schedules. These include a Declaration that a pollution prevent plan has been prepared and is being implemented, a request for Waiver of the requirement to consider a factor or factors for preparation of a pollution prevention plan, and Interim Progress Report and a Declaration that a pollution prevention plan has been completed implemented.

For further information please see: Canada Gazette, Part I  published on October 16, 2010.



Additions to Toxic Substances List

The order adding four substances to Schedule 1 to the Canadian Environmental Protection Act, 1999 was published in the Canada Gazette Part I on October 30, 2010. Substances which were added included Vanadium Pentoxide, Oxirane ("TGOPE"), Bromic Acid ("Potassium Bromate"), and Benzene, 1, 2-dimethoxy-4-(2-propenyl) ("Methyl Eugenol"). These four substances were assessed in Batch 9 of the substances indentified under the Chemicals Management Plan. 

Vanadium Pentoxide occurs naturally in the environment and is used primarily in the manufacture of ferro vanadium and as a catalyst in the production of sulphuric acid. Potassium Bromate is used primarily in industrial and commercial applications. It is used as an oxidizing agent in laboratories, in the dying of textiles and in permanent wave neutralizing solutions in the cosmetic industry. TGOPE is a component of epoxy resin and is used as an adhesive or bonding agent in the manufacture of paints, coatings for industrial use. Methyl Eugenol occurs in the essential oils of certain plan species which are extracted primarily for use as flavour ingredients in food and beverages, and as fragrance ingredients in personal care, cosmetics and household products. They also appear in certain citronella-based personal insect repellents.

The Proposed Order allows the Ministers of Environment and Health to publish proposed regulations or other management instruments no later than September 18, 2012 and to finalize them no later than March, 2013.

For further information please see: Canada Gazette, Part I   published on October 30, 2010.



Proposed Amendment to the Notice requiring the preparation and implementation of pollution prevention plans in respect of specified toxic substances released from base metal smelters and refineries and zinc plants

The Minister of Environment gave notice on November 20, 2010 of a proposal to amend the Status Report Form on Conformance with the Environmental Code of Practice for Base Metals Smelters and Refineries in Section 8.1 of Schedules 1, 4 and 5 of the Notice requiring the preparation and implementation of pollution prevention plans in respect of specified toxic substances released from base metals smelters and refineries and zinc plants.

Comments may be filed with the Minister of the Environment within 60 days after November 20, 2010 about the proposed Notice.

Further information is available in the Canada Gazette, Part I  published on November 20, 2010.



Amendments to the Domestic Substances List

Ethanol, 2-ethoxy-, acetate (2-Ethoxyethanol acetate, "2-EEA") was deleted from Part 1 and it was added to Part 2 of the Domestic Substances List. Part 2 specifies the Significant New Activity for which the substance is subject to subsection 81(3) of the Canadian Environmental Protection Act, 1999, which includes any activity involving, in more than any one calendar year, more than 100 kg of  2-EEA, other than in an industrial setting as a solvent, paint, coating or cleaning solution. Part 2 also specifies the information that must be provided to the Minister at least 90 days before the day on which the quantity of the substance exceeds 100 kg in a calendar year.

Further information is available in the Canada Gazette, Part II, published on November 10, 2010.

Acetamide, 2-chloro- (2-chloroacetamide) was deleted from Part 1 and added to Part 2 of the Domestic Substances List. Part 2 specifies the Significant New Activity for which the substance is subject to subsection 81(3) of the Canadian Environmental Protection Act, 1999, and includes any activity to which the Pest Control Products Act does not apply and which involves, in any one calendar year, more than 100 kg of 2-chloroacetamide. Part 2 also specifies the information that must be provided to the Minister at least 90 days before the day on which the quantity of the substance exceeds 100 kg in a calendar year.

Further information is available in the Canada Gazette, Part II, published on November 10, 2010.

1-Propene, 3-chloro– ("3-chloropropene"), 1,2-Benzenedicarboxylic acid, bis(2-methoxyethyl) ester ("DMEP"), and 2,7-Naphthalenedisulfonic acid, 4-amino-3-[[4′-[(2,4-diaminophenyl)azo][1,1′-biphenyl]-4-yl]azo]-5-hydroxy-6-(phenylazo)- disodium salt ("Direct Black 38") were deleted from Part 1 and added to Part 2 of the Domestic Substances List. Amendments to Part 2 of the List specify the Significant New Activity for which each of the substances is subject to subsection 81(3) of the Canadian Environmental Protection Act, 1999. Part 2 also specifies the information that must be provided to the Minister at least 90 days before the day on which the quantity of any of the substance exceeds 100 kg in a calendar year.

Further information is available in the Canada Gazette, Part II, published on November 10, 2010.

Phenol, 4-[[4-(phenylazo)phenyl]azo]-, Phenol, 4-[[4-(phenylazo)-1-naphthalenyl ]azo]-, Phenol, 2-methyl-4-[[4-(phenylazo)phenyl]azo]-, Phenol, 4,4′-[1,4-phenylenebis(azo)]bis-, Phenol, 4-[[2-methoxy-4-[(2-methoxyphenyl) azo]-5-methylphenyl]azo]-, 2-Naphthalenol, 1-[(2-methoxyphenyl)azo]-, 2-Naphthalenol, 1-[(2,4-dimethylphenyl)azo]-, and 1-Naphthalenol, 4-[(4-ethoxyphenyl) azo]- were deleted from Part 1 and added to Part 2 of the Domestic Substances List. Amendments to Part 2 of the List specify the Significant New Activity for which each of the substances is subject to subsection 81(3) of the Canadian Environmental Protection Act, 1999. Part 2 also specifies the information that must be provided to the Minister at least 90 days before the day on which the quantity of any of the substance exceeds 100 kg in a calendar year.

Further information is available in the Canada Gazette, Part II, published on November 10, 2010.

Substances with the following Chemical Abstracts Service Registry numbers were added to Part 1 of the Domestic Substances List:

18016-43-8 N, 68915-42-4 N-P, 52522-03-9 N-P, 177579-86-1 N-P, 186186-40-3 N-P, 192567-66-1 N-P, 501019-91-6 N, and 676348-65-5 N.

The following substances were added to Part 3 of the Domestic Substances List:

18114-6 N-P 2,5-Furandione, polymer with alkene, alkyl esters, 2-(2-oxo-1-imidazolidinyl)alkyl amide;

18208-1 N-P Oil, glyceridic, polymer with diethylene glycol, glycerine, phthalic anhydride and terephthalic acid;

18209-2 N-P 1,3-Benzene dicarboxylic acid, polymer with hexanedioic acid and 1,6-hexanediol, diamine, 3-hydroxy-2-(hydroxymethyl)-2-methylpropanoic acid, poly[oxy(methyl-1,2-ethanediyl)], α-hydro-ω-hydroxy, 3-isocyanatomethyl-3,5,5-trimethylcyclohexyl isocyanate;

18210-3 N-P 2-Propenoic acid, 2-methyl-, 2-ethylhexyl ester, polymer with butyl 2-propenoate and heteromonocycle-methyl 2-methyl-2-propenoate;

18211-4 N-P Alkyl alkenoic acid, polymer with alkenyl aromatic compound, alkyl alkylacrylate, alkyl alkylacrylate and alkenoic acid; and

18213-6 N-P Polyethylene glycol, 12-hydroxystearyl alcohol, substituted diisocyanate, polymer.

Further information is available in the Canada Gazette, Part II, Vol. 144, No. 24.



Significant New Activity Notice for Aromatic Isocyanate Polymer, Alkoxy-Alkylamine Blocked

The Minister of Environment provided notice that s. 81(4) of the Canadian Environmental Protection Act, 1999 applies to Aromatic isocyanate polymer, alkoxy-alkylamine blocked in accordance with the Annex attached to the Notice.

The Significant New Activity Notice sets out the information that must be provided to the Minister for assessment prior to any new activity being commenced. Section 2 of the Annex specifies that a significant new activity is the use of the substance in Canada, in any quantity, in a consumer product, other than for use as a thixotropic agent in a high-solids moisture-curing polyurethane adhesive.

Further information is available in the Canada Gazette, Part I published on November 13, 2010.



Passenger Automobile and Light Truck Greenhouse Gas Emissions Regulations

The Passenger Automobile and Light Trust Greenhouse Gas Emissions Regulations were registered on September 23, 2010. The objective was to reduce Greenhouse Gas Emissions by establishing a mandatory emission standard for new vehicles of the 2011 and later model years that are aligned with U.S. Standards. The requirements are that the manufacturers and importers meet fleet average GHG Emission Standards as well vehicle specific standards for emissions of methane and nitrous oxides. Flexibility is provided including incentives for vehicles with dual-fuel capability and  advanced technology vehicles.  There are optional standards for companies selling smaller volumes of vehicles. Companies are required to submit annual reports, and to maintain records to confirm compliance with the Regulations.

For further information please see: Canada Gazette, Part II published October 13, 2010.



Aquaculture in British Columbia Now under Federal Jurisdiction

On December 18, 2010 the Federal Government of Canada became the sole regulator of the finfish, shellfish and freshwater aquaculture industries in British Columbia, a jurisdiction it formerly shared with the Province of British Columbia.  The decision of Justice Hinkson for the Supreme Court of British Columbia in Morton v. British Columbia (Minister of Agriculture & Lands), 2009 BCSC 136, concluded that the Federal Government has exclusive jurisdiction over most aquaculture activities, except for the cultivation of marine plants, and declared the provincial legislation to have no force and effect.  A transition period was provided to allow the Federal Government time to enact a regulatory scheme.

The aquaculture industry in British Columbia is now regulated by the Fisheries Act (Canada), RSC 1985, c. F-14, the Pacific Aquaculture Regulations, SOR/2010-270, and the Fishery (General) Regulations, SOR/93-53.  The Regulations apply to most aspects of aquaculture that were regulated by the provincial Finfish Aquaculture Waste Control Regulation, B.C. Reg. 256/2002, as well as those covered by the Marine Mammal Regulations, SOR/93-56, and individual Harmful Alteration, Disruption and Destruction ("HADD") authorizations issued under section 35 of the Fisheries Act (Canada).

The Department of Fisheries and Oceans Canada explains that aquaculture operations within British Columbia now require a federal aquaculture licence issued under the Fisheries Act (Canada), a Navigable Waters Protection Act (Canada) permit, and will continue to undergo environmental assessments under the Canadian Environmental Assessment Act (Canada).  The Province of British Columbia continues to regulate numerous aspects of aquaculture, including issuing leases and tenures for both marine and freshwater operations, and licensing marine plant cultivation.  The business aspects of aquaculture, such as work place health and safety, also remain under the provincial jurisdiction.

Further information is available on the Department of Fisheries and Oceans Canada website.



PROVINCIAL NEWS

ONTARIO

Open-For-Business Act, 2010

Royal Assent was given to An Act to promote Ontario as Open-For-Business by Amending or Repealing Certain Acts" on October 25, 2010. Schedule 7 sets out the changes to the Environmental Assessment Act, Environmental Protection Act, Ontario Water Resources Act, Safe Drinking Water Act and Toxics Reduction Act. The great majority of the changes to the legislation will come into force on a future date upon proclamation of the Lieutenant Governor.

The Act amends ss. 9 and 27 of the Environmental Protection Act ("EPA") and s. 53 of the Ontario Water Resources Act ("OWRA") to eliminate the requirement to obtain a certificate of approval or provisional certificate of approval and to instead require persons engaging in the activities specified in those sections to obtain an environmental compliance approval.

The Act is intended to modernize the approvals process and to provide for a risk-based approach to environmental approvals. In the case of the Ontario Water Resources Act, those sections which are now in force include the addition of Section 15.0.1 which requires a person to respond to reasonable inquiries from a provincial officer for the purpose of determining compliance of a person with the Act. It permits the provincial officer to make inquires by telephone or by any other means. Previously Section 15(1) only provided that a provincial officer may make reasonable inquires. There was no requirement to respond.

Pending the coming into force of the changes to the Environmental Protection Act, Section 53(8) is added. This permits the Director to include terms and conditions in respect of future specified alterations to be carried out, operational parameters, including maximum rates of production and performance limits relating to equipment and infrastructure.

Low-risk activities

Persons proposing to engage in "low-risk" prescribed activities are required to register their intentions in the Environmental Activity and Sector Registry.

Part II.2 of the EPA sets out the rules and the process for registering prescribed activities and obtaining confirmation of the registration from the Director. Once the required regulations are in place and the Registry is up and running, proponents of designated "low-risk" activities will be able to register the prescribed activities, pay the required fee, and provide the required financial assurance (if any). The Director must then provide such persons with a confirmation of registration. Proponents will be able to engage in the prescribed activities in accordance with the rules and conditions set out in the regulations once they have received the Director's confirmation.

The Director may suspend a registration or remove the registration from the Registry in prescribed circumstances.

High-risk activities require environmental compliance approvals

Persons proposing to engage in "high-risk" activities are required to obtain an environmental compliance approval, which may be provided in respect of one or more activities at one or more sites.

Part II.1 of the EPA sets out the new rules and process for applications for environmental compliance approvals to engage in the activities that would otherwise be prohibited by sections 9 and 27 of the EPA and section 53 of the OWRA.

Part II.1 provides the Director with broad powers to consider and administer environmental compliance approvals. The Director may issue or refuse to issue an environmental compliance approval, and may require a proponent seeking an approval to consult with persons in a manner specified by the Director. If the approval is issued, the Director may impose terms and conditions in the approval and incorporate other environmental compliance approvals into the approval.

The Director may require the Environmental Review Tribunal to hold a hearing about an application or a matter that relates to an application for an environmental compliance approval instead of making the decision him/herself.

The Director may also suspend, revoke or refuse to issue an environmental compliance approval if the proponent's past conduct (including the officers and directors of a corporation) affords reasonable grounds to believe that the person will not engage in the activity in accordance with the EPA, the OWRA, or the regulations made under either act.

Administrative Penalties

There is a new definition of "regulated person".  This includes persons prescribed by regulation, who hold an environmental compliance approval or other approval, and a person required to register an activity under subsection 20.21(1) of the Environmental Protection Act. These persons will be subject to Administrative Penalties upon proclamation of the balance of the changes to the legislation.

The administrative penalties are absolute liability "offences": persons failing to comply with the requirements will not be able to adduce due diligence or honest but mistaken belief in a mistaken set of facts defences to avoid liability. A limitations period of one year applies from the date on which the impugned conduct comes to the attention of the provincial officer or the Director. The provisions on administrative penalties are not yet in force.

Persons subject to administrative penalties issued by provincial officers may request the Director to review the orders.

Orders issued by the Director requiring a person to pay an administrative penalty may be appealed to the Environmental Review Tribunal.

Further information is available in the Open for Business Act, 2010.



Guideline A-7

Guideline A-7 establishes air emission limits and operational requirements for municipal waste thermal treatment facilities. The decision was loaded onto the Environmental Registry on October 26, 2010. For thermal treatment facilities (except cement and lime kilns burning municipal waste), Guideline A-7 has been amended to provide for more stringent emission limits for cadmium, lead, nitrogen oxide, organic matter and particulate matter. New emission limits for carbon monoxide have been added and more guidance has been provided on continuous or long-term monitoring.

For cement and lime kilns burning municipal waste as an alternate fuel, there are new emission limits for particulate, and more stringent limits for cadmium and lead.

It should be noted in the case of the York-Durham Thermal Treatment Facility (see article below), permitted particulate matter, mercury, dioxins and furans concentrations were lower than as set out in Guideline A-7.

For further information please see: EBR Registry No. 010-5887 SDB020909.



Waste to Energy Facility Receives Approval

The Regional Municipalities of Durham and York received Environmental Assessment Act approval for the construction and operation of a thermal treatment waste management facility. The facility will process up to 140,000 tonnes of residual municipal solid waste. Notice of Approval to Proceed with the Undertaking is subject to a number of conditions, preparation and implementation of a Waste Diversion Program Monitoring Plan in order to monitor the effectiveness of the diversion activities.  An emissions monitoring as well as noise monitoring and groundwater and surface water monitoring are required.

The facility will be required to meet new, strict air emissions requirements. These are set out below.

Schedule 1 – Air Emission Operational Requirements

Item

Contaminant

Operational Requirements

  1.  

Particulate Matter

9 mg/Rm3

  1.  

Cadmium

7 ug/Rm3

  1.  

Lead

50 ug/Rm3

  1.  

Mercury

15 ug/Rm3

  1.  

Dioxins & Furans

60 pg/Rm3

  1.  

Hydrogen Chloride

9 mg/Rm3

  1.  

Sulphur Dioxide

35 mg/Rm3

  1.  

Nitrogen Oxides

121 mg/Rm3

  1.  

Organic Matter

50 ppmdv (33 mg/Rm3)

  1.  

Carbon Monoxide

35 ppmdv (40 mg/Rm3)

  1.  

Opacity

5% (2-hour average)

10% (6-minute average)



Notes:

Mg/Rm3-milligrams per reference cubic metre; ug/Rm3-micrograms per reference cubic metre; pg/Rm3-picograms per reference cubic metre; ppmdv-parts per million by dry volume

For further information please see: http://www.ene.gov.on.ca/en/eaab/projects/durham_york.htm



Toxic Reduction Act, 2009

The Toxic Reduction Act, 2009 and Ontario Regulation 455/09 came into force on January 1, 2010. The purposes of the Act are to prevent pollution and protect human health in the environment by reducing the use and creation of toxic substances. The list of toxic substances as prescribed in O. Reg. 455/09 includes all substances listed in the National Pollutant Release Inventory Notice given under subsection 46(1) of the Canadian Environmental Protection Act, 1999. The strategy is to be implemented in two phases. Phase 1, which applies to a list of 47 priority substances and substance groupings, was to begin in 2010.

The Ministry is proposing to amend O. Reg. 455/09 to:

  • extend the requirement for Phase I toxic substance reduction plans and plan summaries by one year, to December 31, 2012. The plans and plan summaries would be based on the tracking and quantification data from 2011;
  • address the requirements related to "toxic substance reduction planners"; and
  • revise the exemption criteria for dioxins, furans and hexachlorobenzene.

The first annual report for Phase I substances would still need to be submitted to the Ministry by June 1, 2011. The first report would be based on the tracking and quantification data from 2010. The dates for Phase 2 remain the same. Phase 2 Plans and Plan summaries are be due December 31, 2013. The Plans will be based on the tracking and quantification data from 2012.

Phase 1 substances are listed in Table A to the Regulation and include numerous substances in common usage, such as aluminum, benzene, chlorine, copper, toluene and trichloroethylene.

The Plans require toxic substance accounting, process flow diagrams and options for reducing the toxic substances either through substitution reformulation, equipment modification, leak prevention or recycling.

The Plans also require estimates of all direct or indirect annual costs relating to the toxic substance. Summary reports are required to be prepared and information on the amount of the substance used and the success in achieving the plan is required to be made public.

The first year that all of the Plans would need to be reviewed is 2018.

The proposal was posted for a 62-day public review and comment period starting November 30, 2010. Comments must be submitted by January 31, 2011.

The posting may be viewed here.



Bill 72 establishes a framework to foster innovation and to conserve and sustain Ontario's water resources

Bill 72, entitled Water Opportunities and Water Conservation Act, 2010 received Royal Assent on November 29, 2010. The major components of Bill 72 are described below.

Schedule 1 to the Bill enacts the Water Opportunities Act, 2010.

The purposes of the Act are to:

  • foster innovative water, wastewater and stormwater technologies, services and practices in the private and public sectors;
  • create opportunities for economic development and clean technology jobs in Ontario; and
  •  conserve and sustain water resources for present and future generations.

The Minister of the Environment is empowered to set aspirational targets for water conservation and other matters to further the purposes of the Act.

The Act establishes the Water Technology Acceleration Project Corporation to achieve the Act's goals.

The Act requires municipalities, persons and entities that are prescribed as regulated entities under the regulations to prepare, approve and submit to the Minister municipal water sustainability plans for municipal water, wastewater, and stormwater services. The Minister may set performance indicators and targets for such services and may require regulated entities to take specified actions relating to the performance metrics.

Regulations may be made under the Act that requires public agencies (municipalities and provincial Ministries) to:

  • prepare water conservation plans;
  • achieve water conservation targets established by the regulations; and
  • to consider technologies, services and practices that promote the efficient use of water and reduce the negative impacts on Ontario's water resources when they acquire goods and services or make capital investments.

Regulations may also be made under the Act specifying what information must or may be included on or with a municipal water bill.

The Minister of Environment must prepare a report at least every three years on various matters related to the Bill.

The Water Opportunities Act came into force on November 29, 2010, except for Part II of the Act (ss. 3-23) which will come into force on a date named by proclamation of the Lieutenant Governor.

Schedule 2 to the Bill amends the Building Code Act, 1992 to require the Minister to review water conservation standards in the building code at five-year intervals, and to receive input from the Building Code Conservation Advisory Council.

Schedule 2 is not yet in force.

Schedule 3 to the Bill amends the Capital Investment Plan Act, 1993 to, amongst other things, revise the purposes of the Ontario Clean Water Agency.

Schedule 3 is in force.

Schedule 4 to the Bill amends the Green Energy Act, 2009 to add water and water use principles to the list of principles guiding the Government of Ontario in constructing, acquiring, operating, and managing government facilities. Broader powers are also provided to issue directives relating to water use and conservation.

Schedule 4 is in force.

Further information is available here.



Proposed update to Environmental Noise Guidelines

The draft "Environmental Noise Guideline – Noise Assessment Criteria for Stationary Sources and for Land Use Planning (Publication NPC-300)" was posted to the Environmental Registry on November 16, 2010.

The Guideline defines the requirements and criteria used by the Ministry of Environment when considering applications for approvals for noise from stationary sources, and provides advice about noise which can be applied to land-use planning decisions made by land use planning approval authorities.

The purpose of the proposal is to replace three existing noise-related guidelines issued by the Ministry of Environment. The draft Guideline would replace "Publication NPC-205: Sound Level Limits for Stationary Sources in Class 1 & 2 Areas (Urban)", "Publication NPC-232: Sound Level Limits for Stationary Sources in Class 3 Areas (Rural)", and "Publication LU-131: Noise Assessment Criteria in Land Use Planning".

Comments must be submitted by January 15, 2011.

The posting may be viewed here.



QUEBEC

Québec and GHG Emissions: The Regulation to Amend the Regulation Respecting Mandatory Reporting of Certain Emissions of Contaminants into the Atmosphere is Adopted

Following its initial publication in draft form last June, the Québec Minister of Sustainable Development, Environment and Parks, Pierre Arcand, published the Regulation to amend the Regulation respecting mandatory reporting of certain emissions of contaminants into the atmosphere (the "Regulation") on December 15 2010 in the Gazette officielle du Québec.  The more than 100 page Regulation that came into force on December 30, 2010, implements more restrictive measures concerning the mandatory reporting of greenhouse gas (GHG) emissions.  The amendments which reduce the level at which GHG emissions must be reported and establish the methods for calculating the reportable emissions are aimed at harmonizing the reporting levels with the common rules agreed to within the Western Climate Initiative (WCI) of which Québec is a party. 

Accordingly, the mandatory annual emissions reporting level has been set at 10 000 tonnes CO2.  The reporting obligation shall remain mandatory until such time as the emissions have been below the reporting threshold for three (3) consecutive years (unless provided otherwise by a regulation that remains to be made).  Where an industrial enterprise has several establishments, a separate report will be required for each establishment whose emissions exceed the reporting threshold.  Also, if an industrial establishment has more than one facility, the data for each facility is required to be identified separately. 

Section 6.1 of the Regulation provides that when the operator of an enterprise, establishment or facility changes during a year, the new operator will be required to make the declaration. The previous operator is required accordingly to provide the new operator with all the data required to report for the period during which the person operated the enterprise, establishment or facility.

Also of interest, a person or municipality operating an enterprise, establishment or facility that acquires electricity produced outside of Québec for its own consumption or for sale in Québec will be considered as an emitter under the Regulation.

The Regulation sets emissions subject to future mandatory reductions to 25, 000 tonnes CO2.  These new objectives will apply to the 2011 data which will be reported no later than June 1, 2012 and shall be required to be submitted to the Ministry of Sustainable Development, Environment and Parks (MSDEP) by no later than June 1, 2013.  The Regulation provides a transition period, which enables companies to create systems and measures in order to respect these new objectives.

The calculation methods aimed at industrial activities apply to fixed combustion installations, refinery gas combustion, electricity production, lime production, petroleum refineries, pulp and paper mills, product manufacturing, sodium carbonate production, coal storage, hydrogen production, steel and iron production, petrochemical production, and lead and zinc production. 

The emissions declaration is required to be made electronically to the MSDEP. The declaration must indicate (1) the total quantity of the emitter's CO2 equivalent GHG emissions calculated in accordance with the formula set forth in the Regulation, (2) the quantity of emissions of each type of GHG referred to in Schedule A.1 of the Regulation, (3) the prescribed information concerning the type of emitter's enterprise, facility or establishment and, where applicable, the type of activity carried on and the type of process or equipment used, (4) the total quantity of CO2 emissions attributable to the combustion of biomass and biofuels, (5) the total quantity of  CO2 emissions captured, stored, re-used, eliminated or transferred out of the establishment, the quantity of emissions generated by each operation and the location of each operating or transfer site, (6) the calculation methods used (as set forth in Schedule A.2 of the Regulation), and (7) the emissions factors used. The person responsible for the report must sign it and also attest to the veracity of the information communicated. The emitter must use the same calculation methods for each annual report.

Besides the information outlined above, the emitter must also communicate the name and address of the enterprise, facility or establishment and the name and contact information of its representative, the emitter's telephone and fax numbers as well as e-mail address, its registered business number and ID number assigned under the federal National Pollutant Release Inventory, the type of enterprise, facility or establishment, where applicable, the six-digit code under the North American Industry Classification System (NAICS Canada), and the name and contact information of the person responsible for the GHG emissions report.

As mentioned above, reports submitted for emissions that exceed 25,000 tonnes CO2 equivalent (excluding emissions attributable to the combustion of biomass and biofuels) must be audited. The audit report is required to be submitted to the MSDEP by September 1 following the sending of the emissions report. The Regulation requires that the audit report be performed by an organization accredited to ISO 14065 by a member of the International Accreditation Forum.  According to the Regulation, the verifying organization must not have acted as a consultant to the emitter for the quantification or the GHG emissions report during the three (3) preceding years, and must not have audited more than six (6) of the emitter's consecutive annual reports (unless at least three (3) years have elapsed since the last audit). The auditing obligation remains in effect until such time as the emitter's GHG emissions fall below the auditing threshold for three (3) consecutive years.

Emitters should note that for the report  year 2010, the required GHG emissions report shall be made in accordance with the provisions of the Regulation respecting mandatory reporting of certain emissions of contaminants into the atmosphere, R.R.Q., c. Q-2, r. 3.3, as it read prior to the coming into force of the Regulation.  Other restrictions will also apply in respect to report year 2011 calculation methods set forth in Schedule A.2. The auditing requirement will also not apply to report year 2011.



Water User Fees Come Into Effect

The Regulation respecting the charges payable for the use of water made under the Environment Quality Act was published in the Gazette Officielle du Québec on December 15, 2010.  The Regulation came into force on January 1, 2011.

The purpose of the Regulation is to promote the protection and development of water as a resource and to ensure that there is an adequate quality and quantity of water from a sustainable development perspective.  The Regulation establishes the charges payable for the use of water and will affect all industries that withdraw or use 75 m3 or more water per day whether the water comes from a distribution system or is taken directly from surface water or groundwater.  The charges are established on the basis of the volume of water used in a year. The rate of the charge is set at $0.0025 per cubic meter of water used by the majority of industries.  For certain industries, such as industries in the categories of bottled water, juices and beverages, non-metallic mineral products, agricultural products (pesticides and fertilizers), inorganic chemical products and oil and gas extraction, the charge is established at $0.07 per cubic meter of water used.

Those who are subject to the payment of the charges are required to determine the volume of water used annually by direct measurement taken by measuring equipment the installation, operation, monitoring and measurement of which meets the requirements set forth in the Regulation respecting the declaration of water withdrawals unless otherwise authorized to determine the volume of water by estimates based on indirect or spot measurements.  The payment of the charges for the use of water during 2011 shall be paid no later than March 31, 2012. 

The funds collected through these charges will be deposited in the Québec Green Fund to support various government commitments in the areas of integrated water resource management and knowledge acquisition. 

The Regulation can be consulted at: http://www.mddep.gouv.qc.ca/eau/redevance/reglement-en.pdf



Advisory Committee towards Establishing the Next Quebec Climate Change Action Plan

Pierre Arcand, Minister of Sustainable Development, Environment and Parks, announced on December 12, 2010 the creation of an Advisory Committee that will help him in the preparation of the 2013-2020 Climate Change Action Plan.  The Advisory Committee will assist the Minister in developing the action plan and formulating recommendations in light of Quebec's objective to reduce its greenhouse emissions in 2020 by 20% under their 1990 levels.

The composition of the Advisory Committee can be seen at:

http://www.mddep.gouv.qc.ca/infuseur/communique.asp?no=1815

Creation of a Certification Program for Products with Recycled Content

In an effort against green washing, the Minister of Sustainable Development, Environment and Parks has asked the Bureau de normalization du Québec ("BNQ") to develop a certification program anticipated to become effective at the beginning of 2012.  While the BNQ would own the certification program, the Ministry of Sustainable Development, Environment and Parks would be the holder of the certification mark responsible for insuring its promotion and compliance therewith.  It will be possible for manufacturers to apply for certification of their products with the BNQ, and once approved, the MSDEP will proceed to inscribe the product on a public list or other form of promotion tool that remains to be created.  It is hoped that the certification program will contribute to the development of a green economy through the production and purchase of eco-responsible products as well as the recovery and reclamation of more residual materials.

For more information please, see: http://www.mddep.gouv.qc.ca/infuseur/communique.asp?no=1799



Recyc-Quebec to be Integrated within MESDP

On November 11, 2010, Minister Pierre Arcand announced that the Société québécoise de récupération et de recyclage, better known as RECYC-QUÉBEC, would be integrated within the Ministry of Sustainable Development, Environment and Parks as of April 1, 2011. According to the Minister, this move will allow for better coordination of the Government's priorities and orientations as regards the management of residual materials. RECYC-QUÉBEC's surplus of nearly $40M dollars will be transferred to the Québec Green Fund as well as all other revenues generated through the various recovery and reclamation programs under its management.  These programs will continue though under the auspices of the MSDEP.



Supreme Court clarifies that Aboriginal consultation (and potentially accommodation) is required in the context of modern land claims treaties
By Scott A. Smith

In Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 ("Little Salmon") the Supreme Court of Canada ("SCC") addressed the issue of how the constitutional duty to consult (and potentially accommodate) Aboriginal people applies in the context of modern comprehensive land claims treaties.

The SCC's decision in Little Salmon is bookmarked by its confirmation that the Crown must consult and accommodate Aboriginal people when it contemplates a decision that may impact an Aboriginal or a treaty right where no treaty has yet been signed (Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 42) and by its holding that the duty also applies where a historical treaty is silent about consultation in respect of the right that the Crown seeks to exercise under the treaty (Mikisew Cree First Nation v. Canada (Minister of Heritage), [2005] 3 S.C.R. 388).

The SCC's discussion of the duty to consult and the honour of the Crown in Little Salmon clarifies that governmental decisions in environmental matters involving resource extraction, environmental assessments, wildlife co-management plans or frameworks, water, forestry, or entitlement to carbon offset credits may trigger a duty to consult Aboriginal peoples even after they have entered into modern land claims agreements with federal and provincial/territorial governments.

Facts

Little Salmon/Carmacks First Nation ("Little Salmon") entered into a land claims agreement with the governments of Canada and the Yukon Territory in 1997. The treaty provides that Little Salmon members have a right of access to their traditional territories for subsistence hunting and fishing. Their traditional territories include surrendered "Crown" land and "settlement land" over which Little Salmon was granted title. The treaty contemplates that surrendered land may be taken up from time to time for purposes such as agriculture.

The question of the how the duty to consult and the honour of the Crown applies in the context of taking up surrendered land under the treaty arose when a Yukon resident applied to the Yukon government for an agricultural land grant over part of the surrendered land. The land applied for was within the trapline of a member of the Little Salmon.

The Yukon government's Land Application Review Committee ("LARC") considered the application at a meeting that Little Salmon was invited to participate in. Little Salmon submitted a letter to the LARC opposing the application but a representative of Little Salmon did not attend the meeting. The Yukon government approved the application based on LARC's recommendation.

Little Salmon brought an application for judicial review claiming that the application was granted without proper consultation and without proper regard to Little Salmon's concerns.

Decision

The SCC held that the Yukon government owed Little Salmon a duty to consult with them to determine the nature and extent of the effects that the land grant would have on their interest in the surrendered Crown lands. Little Salmon's interest in those lands is a treaty right of access for hunting and fishing for subsistence.

Aboriginal consultation under modern land claims treaties

Justice Binnie, writing for the majority of the SCC, rejected the territorial government's argument that no consultation was required because the treaty is a complete code that refers to consultation, and therefore, where not specifically included, the duty to consult is excluded.

The duty to consult is derived from the honour of the Crown which applies independently of the expressed or implied intention of the parties. The source of the duty to consult is external to the treaty. The consultation process can be shaped by agreement of the parties, but the Crown cannot contract out of its duty to deal honourably with Aboriginal people. The Crown must continue to act honourably during the resolution of claims and the implementation of treaties.

The SCC held that because the treaty did not expressly provide for a process to assess the decision's impacts on Little Salmon's treaty rights that was in force at the time that the decision was made, consultation was necessary to uphold the honour of the Crown. It was therefore imposed as a matter of law.

The purpose of consultation was to help manage the important and ongoing relationship between the government and the Aboriginal community in a way that upheld the honour of the Crown – it was not to reopen the treaty or to renegotiate the availability of lands for an agricultural grant.

The SCC went on to define the process of assessing the Crown's duty to consult and accommodate in the context of a modern treaty.

The Crown's duty to consult was held to be "at the lower end of the spectrum". The duty to consult was discharged in this case because the governmental decision-maker was informed about and considered the nature and severity of any adverse impact of the proposed grant before he made a decision to determine whether accommodation was necessary or appropriate.

The SCC also concluded that the requirements of procedural fairness were satisfied in this case.

The Court's discussion of the doctrine of procedural fairness serves as an important reminder that the principles of administrative law apply regardless of whether the duty to consult is satisfied in the circumstances of a dispute.

Application of the SCC's decision in Little Salmon to environmental law matters

The SCC's discussion of the duty to consult and the honour of the Crown are extremely relevant to governmental decisions involving environmental matters that may impact Aboriginal treaty rights emanating from modern land claim treaties.

Little Salmon establishes the parameters of the Crown's duty to consult and potentially accommodate Aboriginal people in the context of modern treaties. The Crown may be required to consult (and potentially accommodate) Aboriginal communities where their treaty rights are affected but the treaty does not provide a process to address the impacts of the Crown's decision or conduct.

The SCC's decision in Little Salmon, read in conjunction with its decisions rendered in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, Mikisew, and Carrier Sekani, confirms that the Crown owes Aboriginal communities a duty to consult (and potentially accommodate) them whenever it contemplates a decisions or conduct that may adversely impact an Aboriginal or treaty right. The Crown's duty will apply regardless of whether the affected land is covered by a modern treaty, a historic treaty, or no treaty at all.

The Crown, and not project proponents, will be liable for failing to consult with and, where applicable, accommodate Aboriginal claimants when the circumstances require. Nevertheless, court proceedings to adjudicate whether the duty was triggered and ultimately satisfied in the circumstances will cause significant delays in project development and may ultimately lead to an administrative decision being set aside if the decision was made in breach of the duty. Such delays will normally cause project proponents to incur substantial cost increases associated with project construction and development as a result of inflation.

The SCC clearly articulated in Haida that the duty to consult and potentially accommodate Aboriginal communities does not provide Aboriginal rights claimants with a veto and confirmed in Little Salmon that the "test is not, as sometimes seemed to be suggested in argument, a duty to accommodate to the point of undue hardship for the non-Aboriginal population."

Bearing this in mind, and that the Crown may (and often does) delegate procedural aspects of consultation to project proponents in the context of environmental assessments, it will be in the shared interests of project proponents, Aboriginal communities, and the Crown to avoid litigation by ensuring that Aboriginal communities are consulted, and where appropriate, accommodated, when their Aboriginal and treaty rights may be affected by Crown decisions.

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.

To view Part 2 of this article click on 'Next Page' below.

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This article is part of a series: Click Environment @ Gowlings: January 7, 2011 - Part 2 for the next article.
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