Canada: Environment @ Gowlings: February 8, 2011

Last Updated: February 14 2011

Edited by Harry Dahme

FEDERAL NEWS

  • National Pollutant Release Inventory Reporting Changes for 2010
  • Toluene Residential Indoor Air Quality Guidelines Proposed under CEPA
  • Status Amendments proposed for six Species at Risk, including Bigmouth Buffalo and Killer Whale
  • Pollution Prevention Plan Requirements proposed for Resin and Synthetic Rubber manufacturing sector
  • Most Federal Environmental Enforcement ActProvisions In force December 10, 2010
  • Federal Environment Commissioner Criticizes Government Inaction

PROVINCIAL NEWS

ONTARIO

  • Ontario Makes New Regulations Regarding Ozone Depleting Substances and Other Halo Carbons
  • Ontario Green House Gas Emissions Reporting Regulation Amended
  • Amended Regulations With Respect to Renewable Energy Approvals Take Effect January 2011
  • New Guidelines Proposed for Ontario Renewable Energy Projects Related to Natural Heritage Assessment and Birds and Bird Habitat

BRITISH COLUMBIA

  • Cleaner Gasoline Regulations in Lower Fraser Valley Amended
  • Recent amendments to Greenhouse Gas Reduction Targets ActSchedule and other environmental requirements

QUEBEC

  • Quebec Proposes Amendments to Water Withdrawals Regulations Implementing the Great Lakes - St. Lawrence River Basin Sustainable Water Resources Agreement

ALBERTA

  • Bill 24, the Carbon Capture and Storage Statutes Amendment Act, 2010 received Royal Assent December 2, 2010. It is now S.A. 2010, c.14.

What's Happening



FEDERAL NEWS

National Pollutant Release Inventory Reporting Changes for 2010

The 2010 National Pollutant Release Inventory reporting requirements were issued in December 2010. Information is to be provided to the Federal Minister of Environment no later than June 1, 2011.

The reporting requirements refer to a total of 366 substances, including carbon monoxide, nitrogen oxide, PM 2.5, PM 10, total particulate matter and volatile organic compounds.

Changes for 2010 reporting include:

  • removing the requirement to report
    • the Canadian and United States Standard Industrial Classification (SIC) codes
    •  anticipated quantities of releases, disposals and recycling for each of the three subsequent years
  • adding requirements to report
    • provincial identification numbers for facilities in the conventional oil and gas extraction sector
    • information related to updates of  pollution prevention plan and whether the plan addresses energy or water conservation 

For further information see  Canada Gazette, Part I, December 11, 2010, page 3114



Toluene Residential Indoor Air Quality Guidelines Proposed under CEPA

On October 21, 2010 the federal Health Minister gave notice under CEPA of a proposed residential indoor air quality guideline for toluene:

Residential maximum exposure limits for toluene

 

Concentration

Critical Effects

Exposure limit

mg/m3

Ppm

 

Short-term

12.3

3.3

  • Neurologically-related symptoms (headaches, dizziness and feelings of intoxication)

Long-term

1.88

0.5

  • Neurobehavioural test results


Heath Canada referenced indoor sources of toluene as including building materials, e.g. solvent and water-based adhesives, floor covering, paint and chip board. It stated:

"Canadian's exposure to toluene is attributed predominantly to indoor air, because indoor air levels generally exceed ambient air levels, because of the greater time spent indoors".... Exposure to toluene has been shown to cause eye, nose and throat irritation, as well as headaches, dizziness and feelings of intoxication.  It has also been linked to neurological effects, including poorer performances in tests, short-term memory, attention and concentration, visual scanning, perceptual motor speeds and finger dexterity in the completion of physical tasks, as well as negative effects on colour vision and auditory capacity... Median concentrations of toluene measured in Canadian residences range from 5.5 to 24.7 ug/m3 and average concentrations from 11.5 to 34.4 ug/m3 .  Peak concentrations can reach values of one to two orders of magnitude higher."

Health Canada's notice indicated that its recommended short and long term maximum exposure limits for toluene are presented in the Table (above) along with the critical health effects on which they are based.  The averages over 8 and 24-hour sampling times are recommended as appropriate indicators of short and long-term exposure levels, respectively.  "Exposure to indoor air concentrations above these limits may result in potential health effects."

For further information see Canada Gazette, Part I, December 11, 2010, p.3142. Gazette Page 3142



Status Amendments proposed for six Species at Risk, including Bigmouth Buffalo and Killer Whale

An order  published December 9, 2010 proposes to add six aquatic species to Schedule 1 of the Species At Risk Act (SARA) and to re-classify three species on Schedule 1 of SARA. 

But the Minister of Fisheries and Oceans advised the Minister of the Environment not to recommend the addition of three other aquatic species to Schedule 1, contrary to the recommendation of the risk assessment by COSEWIC.(the Committee on the Status of Endangered Wildlife in Canada).

The addition of species to Schedule 1 as extirpated, endangered, or threatened invokes prohibitions against killing, harming, harassing, capturing, taking, possessing, collecting, buying, selling or trading individuals of these species and against damaging or destroying the residence of one or more of such individuals.  SARA also requires a preparation of recovery strategies and action plans to provide for their recovery and survival.

In September 2010, COSEWIC transmitted to the Governor-in-Council assessments for 12 aquatic species.  Of the 12 species, the Governor in Council is proposing to add 6 aquatic species to Schedule 1 and to reclassify three aquatic species on Schedule 1.  The Minister of Fisheries and Oceans has advised the Minister of the Environment that he recommend to the GIC not to add three other aquatic species to Schedule 1.

Species proposed for addition to Schedule 1 of SARA (6)

Fishes (freshwater)

1.  Bigmouth Buffalo (Saskatchewan River and Nelson River populations)

Special Concern

Fishes (marine)

2.  Yelloweye Rockfish (Pacific Ocean outside waters population)

Special Concern

3.  Yelloweye Rockfish (Pacific Ocean inside waters population)

Special Concern

4.  Striped Bass (St. Lawrence Estuary population)

Extirpated

5.  White Shark (Atlantic population)

Endangered

Mammals

6.  Sowerby's Beaked Whale

Special Concern



Aquatic species proposed for amending their listing status in Schedule 1 of SARA (3)

Fishes (freshwater)

1.  Lake Chubsucker

Threatened to endangered

Molluses

2.  Northern Abalone

Threatened to endangered

Mammals

3.  Killer Whale (Northeast Pacific offshore population)

Special concern to threatened



Species for which the Minister of Fisheries and Oceans has advised the Minister of the Environment not to recommend their addition to Schedule 1 of SARA (3)

Molluscs

1.  Lake Winnipeg Physa

Endangered

Fishes (marine)

2.  Bocaccio

Threatened

3.  Canary Rockfish

Threatened



For the Regulatory Impact Analysis Statement regarding the proposed amendments to the schedule to the Species at Risk Act, see Canada Gazette, Part I, December 18, 2010, p.3227.  Canada Gazette Page 3227  See also for the proposed regulatory text, Canada Gazette, Part I, December 18, 2010, pp.3262 – 3264. Gazette Pages 3262-3264. 



Pollution Prevention Plan Requirements proposed for Resin and Synthetic Rubber manufacturing sector

On January 1, 2011 the federal Department of the Environment published a "Proposed Notice" to require the preparation and implementation of pollution prevention plans in respect of specified substances on schedule 1 of CEPA, 1999 related to the resin and synthetic rubber manufacturing sector.

A final notice will apply to any person or class of persons within the resonance synthetic rubber manufacturing sector who own or operate a facility that purchases, imports or uses one or more of the substances listed in the notice in quantities that meet or exceed the thresholds listed.

"Resin and synthetic rubber manufacturing sector" is defined to include establishments primarily engaged in manufacturing synthetic resonance, plastic materials or synthetic rubber from basic organic chemicals, through a polymerization reaction.  Excluded are establishments engaged in manufacturing plastic adhesives, establishments manufacturing rubber processing chemicals and plasticizers, establishments processing rubber into intermediate or final products, compounders and plastic processers.

See further Canada Gazette, January 1, 2011, Supplement, p.3. Canada Gazette



Most Federal Environmental Enforcement Act Provisions In force December 10, 2010

All provisions of the Federal Environmental Enforcement Act took effect on December 10, 2010 except for four provisions amending the penalty scheme of the Canadian Environmental Protection Act 1999, the Migratory Birds Convention Act 1994, the Canada Wildlife Act and the Wild Animal and Plant Protection and Regulation of International and Inter-provincial Trade Act.

The provisions of the Act now in force were promoted as improving the enforcement tools and sentencing authorities under nine statutes amended by the Act.  These include:

  • The Antarctic Environmental Protection Act
  • The Canada National Marine Conservation Areas Act
  • The Canada National Parks Act
  • The Canada Wildlife Act
  • The Canadian Environmental Protection Act, 1999
  • The International River Improvements Act
  • The Migratory Birds Convention Act, 1994
  • The Saguenay-St. Lawrence Marine Park Act
  • The Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act

Also now in force are provisions that direct all fines collected under those statutes to the Environmental Damages Fund from where they can be used for restoration and other environmental projects.

The FEEA introduced a new statute, the Environmental Violations Administrative Monetary Penalties Act, concerning administrative monetary penalties.  The provisions of this Act are also now in force, except those amending the penalty scheme of the Canadian Environmental Protection Act, 1999, the Migratory Birds Convention Act, 1994, the Canada Wildlife Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.

See Canada Gazette Part II, Vol. 144, No. 26, Dec. 22, 2010, and SI 2010, SOR/2010-91. Canada Gazette



Federal Environment Commissioner Criticizes Government Inaction

In his report tabled in the House of Commons on October 7, 2010, Scott Vaughan, Commissioner of the Environment and Sustainable Development, criticized the federal government for not keeping its commitments to take the lead in protecting the environment and moving towards sustainable development.

"Our report points to some common and long-standing weaknesses in the way the government has been managing environmental issues, from a lack of critical data, the inadequate information about key environmental threats, to a lack of plans to tackle those threats" said Mr. Vaughan.

The report indicates that the government's failure to lead is evident in the absence of a federal strategy for adapting to climate impacts, despite commitments going back 18 years.  This has left departments without the central direction they need to coordinate their own adaption efforts.

The report also notes the government's failure to identify and collect the information it needs to manage critical environmental issues, from information on water quality, to the absence of a national and up-to-date evaluation of the risks of oil spills from ships.

The chapter "The Commissioner's Perspective" is available on the Office of the Auditor General of Canada website.

http://www.oag-bvg.gc.ca/internet/English/mr_20101207_e_34441.html

http://www.oag-bvg.gc.ca/internet/English/mr_20101207_e_34444.html

http://www.oag-bvg.gc.ca/internet/English/mr_20101207_e_34445.html

http://www.oag-bvg.gc.ca/internet/English/mr_20101207_e_34443.html

http://www.oag-bvg.gc.ca/internet/English/mr_20101207_e_34442.html

PROVINCIAL NEWS

ONTARIO

Ontario Makes New Regulations Regarding Ozone Depleting Substances and Other Halo Carbons

Ontario Regulation 463/10, effective January 1, 2011, made under the Environmental Protection Act, now governs ozone-depleting substances and other halo hydrocarbons.  It was published on e-laws December 7, 2010. This regulation revokes the previous Regulation 356, of the Revised Regulations of Ontario 1990 and other amendments to that Regulation made in 1994. e-laws



Ontario Green House Gas Emissions Reporting Regulation Amended

Ontario Regulation 493/10 made under the Environmental Protection Act and published on e-laws December 14, 2010 contains the first amendments to Ontario Regulation 452/09 with respect to greenhouse gas emissions reporting. The categories of manufacturing and other activities required to report are amended as are numerous other provisions of this Regulation.  e-laws



Amended Regulations With Respect to Renewable Energy Approvals Take Effect January 2011

Ontario Regulation 521/10 made under the Environmental Protection Act and published on e-laws December 22, 2010 makes a number of important revisions to the Renewable Energy Approvals Regulation.  e-laws



New Guidelines Proposed for Ontario Renewable Energy Projects Related to Natural Heritage Assessment and Birds and Bird Habitat

In early December 2010 the Ontario Minister of Natural Resources posted a proposed "Natural Heritage Assessment Guide" to be used in relation to renewable energy approvals for application to both Crown and private lands.

The Natural Heritage Assessment Guide addresses the natural heritage assessment requirements of the Renewable Energy Approval Regulation and provides technical guidance to renewable energy project applicants by:

  • providing a consistent and standardized approach to the assessment and evaluation of natural heritage features for renewable energy projects province-wide
  • outlining MNR's established and accepted procedures for completing all elements of the natural heritage assessment including:  records review; site investigation; evaluation of significance; and environmental impact studies
  • providing information and information sources related to mitigation approaches specific to renewable energy projects, and pre and post-construction monitoring methods
  • employing an established approach based on MNR's Natural Heritage Reference Manual (2nd Edition), which support the Natural Heritage Policies of the Provincial Policy Statement, 2005, issued under the Planning Act

Comments were to be filed by January 24, 2011.

For further information see EBR Registry 011-1845.  EBR

In November, 2010 the MNR also posted proposed "Birds and Bird Habitats:  Guidelines for Wind Power Projects (2010)" with comments closing in December 2010.

The proposed "Birds and Bird Habitats Guidelines identify and address potential negative effects on birds and bird habitats during the planning, construction and operation of wind power projects by:

  • focusing pre-construction monitoring on identification and evaluation of bird habitats to consider potential impacts of wind power developments on birds and bird habitats
  • identifying methods for evaluating the significance of candidate bird significant wildlife habitat and adopting a habitat set-back approach, with assessment and monitoring based on proximity to significant habitats
  • establishing post-construction bird mortality monitoring requirements for all on-shore wind power projects, via an environmental effects monitoring plan; and
  • establishing a requirement for an additional two years of scope monitoring when specified bird mortality thresholds are exceeded

The EBR posting dated November 5, 2010 indicated that pending the implementation of the Guideline, as interim direction, the criteria and procedures identified in the guideline will be deemed to be acceptable by MNR for wind power projects reviewed under the REA Regulation.

For further information see EBR Registry No. 011-0112. EBR



BRITISH COLUMBIA

Cleaner Gasoline Regulations in Lower Fraser Valley Amended

B.C. Regulation 346/210 approved December 3, 2010 under the B.C. Environmental Management Act amended the Cleaner Gasoline Regulation with respect to the prohibition for sale of gasoline in the lower Fraser Valley during the period July 16 and ending on August 14 of each year unless the vapour pressure of the gasoline is less than or equal to the sum of the maximum of vapour pressure referred to in a specific standard. 

For further information see British Columbia Gazette, Part II, December 14, 2010, p.1-2.



Recent amendments to Greenhouse Gas Reduction Targets Act Schedule and other environmental requirements

On December 3, 2010 B. C. Regulation 347/210 amended the schedule to the Greenhouse Gas Reduction Targets Act to add provisions with respect to a "validation body" and a "verification body".

For further information see British Columbia Gazette, Part II, December 14, 2010. British Columbia Gazette

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.

Other amendments made to B.C. environmental Regulations in December 2010 included the following:

  • The Smart Meters and Smart Grid Regulation
  • First Nations Clean Energy Business Fund Regulation
  • Amendments to B. C. Regulation 272/2009 regarding reporting under the Greenhouse Gas Reduction (Cap and Trade) Act
  • Amendments to B. C. Regulation 246/2007 Code of Practice for the Slaughter and Processing Industries
  • Amendments to the Greenhouse Gas Reduction (Renewable and Low Carbon Fuel Requirements) Act

For further information see B. C. Regulations Bulletin Nos. 45, 46 and 47 (December 14, December 21 and December 31, 2010).

Bulletin No. 45, December 14, 2010

Bulletin No. 46, December 21, 2010

Bulletin No. 47, December 31, 2010

QUEBEC

Quebec Proposes Amendments to Water Withdrawals Regulations Implementing the Great Lakes - St. Lawrence River Basin Sustainable Water Resources Agreement

The Great Lakes–St. Lawrence River Basin Sustainable Water Resources Agreement (the "Agreement") between Québec and Ontario and the American States of Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin was entered into on December 13, 2005, .  In 2009, Quebec enacted the Act to affirm the collective nature of water resources and provide for increase water resource protection was adopted by the National Assembly for the purpose namely of implementing this Agreement. 

As regulatory provisions are required to complete the legislative provisions introduced by this Act, the Minister of Sustainable Development, Environment and Parks, Pierre Arcand, tabled The Draft Regulation to amend the Regulation respecting the declaration of water withdrawals (the "Draft Regulation").  See Gazette Officielle du Québec on January 26, 2011. Gazette Officielle due Quebec

The Draft Regulation specifies the standards applicable to the declaration of water withdrawals which will be used to establish the reference volumes of water necessary to implement the Agreement.  It also sets the standards for the annual declaration of water withdrawals in the territory of the St. Lawrence River Basin within Quebec which reach or exceed a volume of 379 000 liters per day (the "Threshold"). Persons who withdraw water in excess of the Threshold will be required to have the quantities of water consumed estimated by a professional (i.e. a professional within the meaning of the Québec Professional Code).  This estimate is required only once in order to establish the reference volumes of water involved. 

The Draft Regulation provides that certain water withdrawals will be exempted.  This would be the case for (1) withdrawals used for the production of hydroelectric power by means of run-of-river works or facilities, and (2) withdrawals by means of works used for the impounding of water (other than a dam) such as a pond or a basin having no hydraulic interconnection with groundwater (unless the pond or basin is supplied by means of a surface water drainage system.

The Draft Regulation provides that by no later than March 31, 2012, a withdrawer that withdraws water from the St. Lawrence River Basin from a withdrawal site equal to or greater than 379 000 liters must, in order to enable the Minister of Sustainable Development, Environment and Parks to determine the reference volumes of water for the implementation of the Agreement, send to the Minister a declaration on existing withdrawals containing the following information:

  • The withdrawer's name, address, telephone number and, where applicable, its Québec business number;
  • The withdrawal sites involved, identified by geo-referenced data;
  • The name of the lake or watercourse from which water is withdrawn;
  • The origin of the surface water or groundwater withdrawn;
  • Whether or not measuring equipment is used and the type of equipment, where applicable;
  • The class of industrial or commercial activities for which the withdrawals are made (according to the North American Industry Classification System (NAICS);
  • Where the withdrawals are for multiple classes of industrial or commercial activities, the volume of water, in percentage or cubic meters, broken down per class;
  • The authorized daily water withdrawal volumes according to the certificate of authorization, authorization or documents that are part thereof in the cases set forth by the Draft Regulation;
  • The volumes of water corresponding to the withdrawal rated capacity of the works or facility for which no certificate of authorization or authorization was issued; where the rated capacities of the components of works or facilities are different one another, the declaration must indicate the lowest rated capacity and identify the component used to establish the rated capacity;
  • The volume of water consumed within the St. Lawrence River Basin out of the volumes of water withdrawn from the Basin that have been declared;
  • The volume of water transferred out of the St. Lawrence River Basin out of the volumes of water withdrawn from the Basin that have been declared in the manner set forth in the Draft Regulation;
  • The volumes of water consumed out of the Basin out of the volumes declared to have been transferred out of the Basin.

The Draft Regulation further provides for the obligation to submit an annual declaration to the Minister of Sustainable Development, Environment and Parks, for the preceding year, for those whose works or facilities have a withdrawal rated capacity of 379 000 liters or more per day containing the information prescribed by the regulation.

The Draft Regulation, that follows the tabling last November of the Draft Regulation respecting the framework for authorization of certain projects to transfer water out of the St. Lawrence River Basin, is presently undergoing the prescribed 60 day consultation period and can be reviewed at:  http://www.mddep.gouv.qc.ca/eau/prelevements/reglement2011.pdf

ALBERTA

Bill 24, the Carbon Capture and Storage Statutes Amendment Act, 2010 received Royal Assent December 2, 2010. It is now S.A. 2010, c.14.

This legislation amends the Alberta Energy Resources Conservation Act as well as the Mines and Minerals Act to facilitate carbon capture and storage and to secure the observance of safe and efficient practices in the exploration for and use of underground formations for the injection of substances.

Part IX "Sequestration of Captured Carbon Dioxide" to the Mines and Minerals Act  provides the Energy Resources Conservation Board with more specific regulatory powers in respect of captured carbon dioxide and rights to drill wells and to inject captured carbon dioxide for sequestration.

The revised legislation provides that the lessee of an agreement under the legislation is required to monitor all wells and facilities and perform all closure activities in accordance with the regulations and that following the cessation of activities the lessee can apply for a "Closure Certificate" which may or may not be issued by the Minister depending on the extent to which the Minister is satisfied that the lessee has complied with reclamation requirements under the Environmental Protection and Enhancement Act. [s. 120]

Once a Closure Certificate has been issued by the Minister, the Crown:

  1. becomes the owner of the captured carbon dioxide injected pursuant to the agreement
  2. assumes all obligations of the lessee under the Oil and Gas Conservation Act, the Environmental Protection and Enhancement Act and under the Surface Rights Act, and further the Crown releases the lessee from obligations with respect to the wells within the location of the agreement used by the lessee in relation to the injection of captured carbon dioxide. [s.121]

Further, the Crown is required to indemnify a lessee against liability for damage in an action in tort brought by another party if the liability is attributable to an act done or omitted to be done by the lessee and the lessee's exercise of rights under the agreement in relation to the injection of captured carbon dioxide and any other condition specified in the regulation are met. [s.121(1)]

A "post-closure stewardship fund" is established under the legislation, for several reasons, including "for the purpose of monitoring the behaviour of captured carbon dioxide that has been injected pursuant to an agreement under this part", as well as for the purpose of fulfilling any obligations that are assumed by the Crown pursuant to s.121(1) and for suspension costs, abandonment costs and related reclamation or remediation costs in respect of orphan facilities where the work is carried out by the Energy Resources Conservation Board, by a person authorized by the Board or by a Director of Alberta Environment. [s.122(1)].  Provisions are made for "orphan facilities which may be designated by the Energy Resources Conservation Board and in respect of which the Minister may make a payment from the fund. [s.123]

Other consequential amendments are made to the Oil and Gas Conservation Act, the Public Lands Act, the Surface Rights Act. SRA

What's Happening

David Estrin, Mark Madras and Harry Dahme have been listed as leading environmental lawyers in Canada in the fifth edition (2010/2011) of the Cross-Border Environment Handbook published by the U.K. based Practical Law Company.  Gowlings as a law firm is listed as "Highly Recommended" in the area of Environmental Law.

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 print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
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Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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