Canada: Torys On Environmental, Health And Safety


Ontario Power Authority to offer extension to FIT contract suppliers

On February 9, 2011, the Ontario Power Authority (OPA) announced that it will offer feed-in tariff (FIT) contract holders an extension of up to one year on their milestone date for commercial operation (milestone COD). To take advantage of this extension, electricity suppliers will be required to execute a FIT-contract amending agreement with the OPA. According to the OPA, the extension offer is a response to delays in the province's renewable energy approval (REA) process.

In exchange for the extension of the milestone COD, suppliers will be required to surrender certain force majeure (FM) rights. To date, the OPA has provided little detail on which FM rights must be surrendered (to obtain the extension), but the OPA has indicated that those details will be set out in emails to suppliers. The OPA has also indicated that it will only grant other types of FM claims (i.e., relating to FM rights that are not surrendered) if part of the eligible delay falls outside a one-year moratorium window.

Any extensions will not take effect until a FIT-contract amending agreement has been executed between the supplier and the OPA. A milestone COD extension will not affect a developer's current domestic content level requirements; but it will have the effect of extending the date by which the supplier is required to submit the notice to proceed (because the timing of this submission notice is related to the milestone COD).

Over the next several weeks, the OPA plans to email FIT counterparties that have not reached commercial operation with an offer to execute a FIT-contract amending agreement. The email will contain details on how suppliers can take advantage of the extension offer.

For further information, please see the OPA's announcement and Frequently Asked Questions.

MOE suspends development of approval process for offshore wind facilities

The Ontario Ministry of the Environment (MOE) recently suspended the development of its approval process for offshore wind facilities. Last year, the MOE held consultations on proposed regulatory requirements for offshore wind facilities, and the Ministry of Natural Resources (MNR) conducted a consultation on when and how Crown land should be made available for offshore wind facilities. In light of the responses to these consultations, the Ontario government announced that it will not be approving the development of offshore wind projects until further scientific research is completed and "an adequately informed policy framework can be developed." Until then, the government has indicated that applications for offshore wind projects in the FIT program will no longer be accepted, and current applications will be cancelled. Similarly, the MNR will also be cancelling all existing Crown land applications for offshore wind development from applicants that do not have a FIT contract, including those with Applicant of Record status, and will not be accepting any new Crown land application.

For further information, please see the Policy Decision Notice.

MOE proposes technical guidance for water-assessment and water-body reports

The MOE has released draft guidance regarding the completion of the water assessment and water body reports that proponents of renewable energy projects must submit with their REA applications, as required by O. Reg. 359/09. This guidance document covers all renewable energy generation facilities that require a REA, except Class 2 (i.e., with a name plate capacity of more than 3 kilowatts, but less than 50 kilowatts) and Class 5 (i.e., offshore) wind facilities. The MOE's proposed draft document, which is posted for public review and comment ending on March 14, 2011, is available at Guidance for Preparing Water Assessment and Water Body Reports.

Ministry of Labour starts new safety blitz

The Ministry of Labour (MOL) began a new workplace safety blitz in February, focusing its inspections on hazards in shipping and receiving areas, such as loading docks. In particular, MOL inspectors are visiting industrial and healthcare workplaces to inspect for hazards involving loading and unloading activities, the entry and exit of transport vehicles and the positioning and securing of vehicles.

For further information, please see Loading Dock Safety Focus of Safety Blitz.

Ontario appoints Interim Prevention Council for Health and Safety

As reported in Torys' December 2010 EHS Bulletin, Ontario's Expert Advisory Panel on Occupational Health and Safety recently released its report recommending various measures to improve occupational health and safety in Ontario. To help the province implement the panel's key recommendations, including the recruitment of a Chief Prevention Officer, Ontario has appointed an interim prevention council. Implementation measures are expected to be developed over the next several months.

For further information, please see the MOL's press release.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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