Canada: Environment @ Gowlings: August 5, 2011

Last Updated: August 15 2011

Edited by Harry Dahme

FEDERAL NEWS

A Climate Change Plan for the Purposes of Kyoto Protocol Implementation Act

Notice was given on June 4, 2011 that a Climate Change Plan had been prepared by the Minister of Environment pursuant to Section 5(1) of the Kyoto Protocol Implementation Act. This was the fifth iteration of the Plan required under the Act.

Canada restated its commitment to reducing its economy-wide GHG emissions by 17% below 2005 levels by 2020, equivalent to reducing Canada's 2020 emissions to 607 megatonnes. It was re-emphasized that Canada's approach would be aligned with that of the United States where appropriate and where it was in Canada's best interests to do so. It was proposed that this would be accomplished by focusing on a sector-by-sector regulatory approach.

For more information please see:

http://gazette.gc.ca/rp-pr/p1/2011/2011-06-04/html/index-eng.html

http://www.climatechange.gc.ca/default.asp?lang=En&n=4044AEA7-1#nrtee


Consultation on the Canada-wide Approach for the Management of Wastewater Biosolids

The comment period on the proposed Canada-wide Approach for the Management of Wastewater Biosolids expired on July 30, 2011.

The Canadian Council of Ministers of the Environment ("CCME") mandated a Biosolids Task Group to develop a harmonized policy and regulatory framework for municipalities and others who manage municipal biosolids for the purpose of protecting the environment and human health and safety and to instill public confidence.

Canadian wastewater treatment plants produce more than 660,000 dry tonnes of biosolids per year. The municipal biosolids contain valuable nutrients and organic matter as well as some substances of concern. Municipal biosolids are currently managed in a variety of ways including composting, land application and through incineration and disposal in landfill.

The purpose of the draft policy was to define and promote a Canada-wide approach to beneficial use and sound management of municipal solids, municipal sludge and treated septage.  The draft supporting principles for the Approach are:

  • municipal solids contain valuable nutrients and organic matter that can be recycled
  • adequate source reduction and treatment of municipal sludge and treated septage should effectively reduce pathogens, vector attraction, odours and substances of concern
  • beneficial use of municipal sludge and treated septage should minimize the net GHG emissions from treatment processes
  • beneficial uses and sound management practices must adhere to all applicable legislation and standards

For further information please see: http://www.ccme.ca/about/consultation.html


Extension of Due Date for Phase I Toxic Substances Reduction Plans

The amendments to Ontario Regulation 455/09 extending the due date for the Phase I Plans and Plan Summaries under the Toxics Reduction Act, 2009 came into effect on July 1, 2011. The new date for developing Toxic Substance Reduction Plans is December 31, 2012.

A Toxic Substance Reduction Plan is required to be certified by the highest ranking employee at the facility with management responsibilities relating to the facility and a toxic substance reduction planner being a person with the qualifications prescribed by the regulation. A toxic substance reduction planner is required to be licensed. Licences are valid for a period of 5 years and may be renewed subject to the planner meeting continuing education and professional development requirements.

The purpose of the amendment to Ontario Regulation 455/09 was to ensure that there were a sufficient number of toxic substance reduction planners in order to assist the facilities with developing and certifying the plans in advance of the due date.

For further information please see:

http://www.ebr.gov.on.ca/ERS-WEB-External/searchNotice.do

EBR NO. 011-1191
EBR NO. 011-2378
EBR NO. 011-3627
EBR NO. 3567
EBR NO. 010-9940


Amendments to the Environmental Management Protocol for Fuel Handling Sites in Ontario

The comment period for the revised Environmental Management Protocol for Fuel Handling Sites in Ontario expired on June 22, 2011.

The previous Environmental Management Protocol for Fuel Handling Sites in Ontario was dated May, 2007. Amendments were required to provide consistency with amendments made to Ontario Regulation 153/04, the Records of Site Condition Regulation.

For more information please see: EBR NO. 011-3627


Amendments to Ontario's Records of Site Condition Regulation in Effect on July 1, 2001

The Record of Site Condition Regulation (Ontario Regulation 153/04) was amended on December 29, 2009. While there were some changes which took effect immediately, the great majority of the changes came into effect on July 1, 2011.

The Record of Site Condition Regulation made pursuant to the Environmental Protection Act sets out the process and the standards to be used for the purposes of determining whether a property is "clean".  Using the procedures and standards made pursuant to this Regulation, an owner may file a Record of Site Condition ("RSC") on the Environmental Site Registry. The effect of filing a RSC on the Registry is that, subject to the information in the RSC being accurate and subject to no new information coming forward indicating that site conditions are different than as reported in the RSC, no order shall be issued by the Ministry of Environment in respect of the contaminants discharged into the natural environment on the property before the certification date where that contaminant was on, in or under the property as of the certification date. A RSC is often used as a determining factor for whether or not to conduct remediation of property or whether to purchase or lend on property.

The changes to the Regulation which come into effect on July 1, 2011 include the following:

  • New Standards. Not only do many of the numerical Standards for the different property uses and different site conditions change (in the majority of cases the Standards become more stringent) there are also now new Standards for Background Site Conditions, shallow soils and for use within 30 metres of a water body.
  • The requirements for a Phase I Environmental Site Assessment have been revised and have become more extensive, where a Phase I Environmental Site Assessment is to be used in support of a RSC.
  • The requirements for a Phase II Environmental Site Assessment have been revised and have become more extensive, where a Phase II Environmental Site Assessment is to be used in support of a RSC.
  • The amended Regulation also now mandates the completion of a Phase II Environmental Site Assessment where a property has been used for an industrial use or certain specified commercial uses.

Since the publication of the changes to the Regulation there have also been a number of Technical Guidance Documents which have been published including the Soil Vapour Intrusion Assessment, all for the purpose of providing a greater direction as to the requirements to be met for the purposes of filing a RSC under this amended Regulation.

Although the changes to the RSC Regulation did not come into effect until July 1, 2011, many purchasers and lenders on property had already required that properties meet the new Standards, or be remediated in order to meet the new Standards .

For a  link to the Regulation please see: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_040153_e.htm


Currie v. Director, Ministry of the Environment that is issued by the ERT on June 7, 2011

The Environmental Review Tribunal ("ERT") has confirmed that Orders may be issued by the Director pursuant to Section 18 of the Environmental Protection Act to current and previous directors of current and former owners or operators of sites where the other pre-requisites for the issuance of an order pursuant to Section 18 are satisfied. In Currie v. Director, Ministry of the Environment , issued on June 7, 2011, the ERT dismissed the appeal on behalf of the former directors and officers of the corporate owners of a contaminated site and found them responsible for compliance with the Section 18 order, notwithstanding that subsequent owners and corporate directors had become responsible for the site.

The ERT rejected the "fairness" argument raised by the appellants.  The ERT also refused to apportion liability among the persons subject to the Order. Importantly in determining the issue of responsibility, the ERT, in determining whether or not the former directors and officers had "management and control of an undertaking of property" confirmed that the responsibility rests with the corporate directors to provide the necessary evidence to establish that they did not exercise management or control.

This ERT Decision confirms that all current and previous corporate directors and officers exercising a sufficient degree of management and control are subject to the issuance of an order in the event that the other requirements for the issuance of the Section 18 Order exist. It is unclear from the Decision as to whether or not those directors and officers would be able to rely upon due diligence or the fact that other directors and officers may have direct responsibility for managing the environmental issues. Commentators have suggested that in this regard, this Decision may conflict with the Ontario Business Corporations Act which exempts directors from liability if they exercise the appropriate care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.

For more information please see: Currie v. Director


ALBERTA

Release of the Alberta Environmental Monitoring Panel Report and the Integrated Oil Sands Environment Monitoring Plan

By: Garth Parker, Martha Monterrosa, Student-at-Law and Tracy Kaczur, Student-at-Law

On July 5, 2011, the Alberta Government released the Environmental Monitoring Panel Report to the public. The expert panel was appointed in January, 2011, by Alberta's Environment Minister, Rob Renner, and was composed of experts from industry, science, health, and economics. The goal of the panel was to provide recommendations for an environmental monitoring, evaluation, and reporting system.

The panel reviewed studies and reports on environmental monitoring initiatives, visited the oil sands region, received written submissions from various stakeholders, held public engagement sessions in Fort McMurray, Edmonton, and Calgary, and met with Aboriginal communities. The panel's recommendations, which are thorough, include 20 recommendations for a science-based environmental monitoring system. The three main conclusions reached by the panel are as follows:

  • Alberta must adopt a new environmental monitoring, evaluation, and reporting system which focuses on environmental effects monitoring and has a publicly accessible database;
  • The system must be organized and integrated across the Province of Alberta and cover air, land, water, and biodiversity issues to allow for more effective use of funding and ensure consistent environmental compliance; 
  • A permanent, sustainably-funded, arm's length Environmental Monitoring Commission should be created to ensure oversight, organization, and integration of the system.

To date, the Alberta Government has not made any formal decisions on the Report, but has indicated that it plans to conduct an in-depth review of the recommendations.

In addition to the release of the Alberta Environmental Monitoring Panel Report, the Federal Government  released the Integrated Oil Sands Environment Monitoring Plan on July 21, 2011. The Plan is targeted specifically at developing a world-class monitoring program. It was developed by an independent oil sands advisory panel made up of federal, provincial, territorial and independent scientists. The report is composed of technical documents which provide the scientific foundation necessary to detect problems in air, water, and biodiversity quality in the oil sands region. However, the Plan does not deal with implementation issues such as funding or the responsibilities of existing organizations or institutions. The Federal Government has stated that it will work in collaboration with the Alberta Government and industry to develop strategies to implement the plan.

Gowlings will continue to monitor any developments in connection with the Provincial Report and Federal Plan as well as any possible implementation of an integrated monitoring system for the oil sands.


QUÉBEC

Quebec's response to shale gas critics - Draft regulations now law

In our July issue of Environment@Gowlings, we provided an extensive overview of the draft Regulation to amend the Regulation respecting the application of the Environment Quality Act and draft Regulation respecting the filing of information on certain drilling and fracturing work on gas or petroleum wells, published last May in the Gazette officielle du Québec.  On June 8, 2011 these regulations were duly adopted by the Government and they came into force on the day of their publication pursuant to Section 18 of the Regulations Act rather than 15 days following the date of their publication as is usually the case. This is possible where the Government is of the opinion that the urgency of the situation requires it. 

In the present case, the Government was of the opinion that the urgency existed due to several factors.  First,  the Minister of Sustainable Development, Environment and Parks had reasons to believe that drilling work or fracturing operations to explore for or produce natural gas in shale were likely to be carried out at any time as of the date of the Order-in-Council.  Second, that during the time normally given following the publication of a regulation, drilling work or fracturing operations may begin without the work being subject to the review procedure provided for in Section 22 of the Environment Quality Act.  Lastly, that it was urgent to establish as soon as possible the regulatory standards to make drilling work to explore for, or produce, natural gas in shale and fracturing operations to explore for, or produce, petroleum or natural gas subject to the requirement to first obtain a certificate of authorization pursuant to the first paragraph of Section 22 of the Environment Quality Act, before the next drilling and rock fracturing campaign.  It was therefore judged expedient to make the regulations in question.  Both regulations were thus published in the Gazette officielle du Québec of June 10, 2010 and therefore came into force at that date.  For more details concerning these regulations, we invite you to read the July issue of Environment@Gowlings.


Greenhouse gas emissions from motor vehicles

The Québec Government published in the Gazette officielle du Québec of June 8, 2011, the draft Regulation to amend the Regulation respecting greenhouse gas emissions from motor vehicles.  The initial regulation which came into effect January 14, 2010 establishes standards for average greenhouse gas emissions for 2010 to 2016 model year vehicles initially sold within Québec.  These standards are the same as those used in the State of California.  The proposed amendments are made mainly to consider the vehicle fleet of a manufacturer that complies with the provision of the federal regulation for greenhouse gas emissions of passenger automobiles or light trucks as complying with Québec's standards for the 2012-2016 model years. 

The draft regulation also proposes to allow a manufacturer to agree with the Ministry of Sustainable Development, Environment and Parks on the information and documents that are to be filed so that the Minister may assess the greenhouse gas produced by the vehicle fleet marked in Quebec by the manufacture.  It is thus intended that the changes will bring Québec requirements into line with those used elsewhere in Canada and in North American jurisdictions, beginning in 2012, by offering greater flexibility to auto manufacturers who comply with Canadian federal standards.  Québec's standards for 2010 and 2011 model year vehicles will continue to apply.  The consultation period for the draft regulation will end on August 6, 2011.


Amendments with respect to residual materials management

On June 10, 2011, the National Assembly passed Bill 88 entitled An Act to amend the Environment Quality Act as regards residual materials management and to amend the Regulation respecting compensation for municipal services provided to recover and reclaim residual materials.  The amendments provide for a better definition of the concept of reclamation by replacing, in the former definition of the term "reclamation", the word "composting" with "biological treatment, including composting and biomethanation, land farming". 

An order of precedence is also established in the treatment of residual materials; reduction at source is given priority by the Government.  The Ministry of Sustainable Development, Environment and Parks is also given the power to delegate various responsibilities to Recyc-Québec with regards to the reclamation of residual materials.  This has come as good news following an initial announcement that Recyc-Québec would be wound-up into the Ministry of Sustainable Development, Environment and Parks.  Recyc-Québec now remains a separate entity from the Ministry. 

The Act further amends the Environment Quality Act, as well as the Regulation respecting compensation for municipal services provided to recover and reclaim residual materials, in order to define the calculation method and the performance and efficiency criteria used to determine the annual compensation owed to municipalities by the persons who produce, market or otherwise distribute materials subject to compensation.  According to the amendments, the amount of compensation will be divided among the materials or classes of materials, according to the share allotted by the Government.  Recyc-Québec will have the responsibility of determining the annual amount of compensation on the basis of the information the municipalities will be required to send to it for that purpose.  One of the main amendments is the provision for an annual increase of the percentage of compensation owed to municipalities until full compensation of the admissible costs has been reached in 2013.  The percentage presently paid by designated stewards for certain materials listed in the Regulation is 50% of the costs of municipal services to recover and reclaim residual materials.  It is thus intended that this percentage will increase to 100% by 2013.


Finally, the new Clean Air Regulation

On June 13th 2011, the Minister of Sustainable Development, Environment and Parks, Pierre Arcand, announced the adoption of the new Clean Air Regulation (CAR) made under the Environment Quality Act, which came come into force on June 30th.  The CAR, first published in draft form almost six years ago, will replace the Regulation respecting the quality of atmosphere (RQA). Adopted in 1979, the RQA had escaped many modifications due to pressures from industry and, more recently in 2008, the fear of a recession. The Minister, following initiatives from North-Eastern states and from other provinces in Canada, thus decided to proceed with these new regulatory air quality requirements and standards.  

The CAR will affect the industrial, commercial and institutional sectors and, namely, some 200 large industries and 4500 small and medium enterprises in Québec. It should be noted though that the City of Montreal area is excluded from the CRA, since the City oversees the application of the Montreal Metropolitan Community air quality by-law. The Minister has indicated that efforts will be made to harmonize the by-law and the CRA.

The CAR tightens certain existing standards from the RQA, but also introduces new ones such as the following:

  • 90 toxic substances will be controlled by the CAR, including more than 80 new substances.
  • New standards and emission limit values will affect namely the aluminum, cement, steel and wood industries.  These standards will also cover activities such as the incineration of hazardous substances, the use of residual substances for energy generation and the industrial combustion of wood.
  • The emission of volatile organic compounds (VOCs) will face new general emission standards that will affect namely paint manufacturers, printing facilities, dry cleaners, petroleum refineries, petrochemical and chemical plants.
  • Certain facilities or activities, such as flour mills, distilleries, breweries and cement plants will be affected by more stringent limit values for their particulate emissions.
  • A number of industries will also have to be equipped with systems to continuously monitor their emissions for specific toxic substances and to report the results of compliance tests once or twice a year to the Ministry of Sustainable Development, Environment and Parks.
  • The CAR creates new air measuring standards that will be applicable to new establishments or to establishments undergoing renovations only.
  • Transitory periods are provided for under the CRA to facilitate compliance.  Particulate emission standards, for example, will only apply as of June 2013, VOC emission standards as of June 2014 and between 2011 to 2016 for emission standards applicable to large emitters such as aluminum smelters, cement plants, steel plants, the wood industry, the asbestos industry, the lead industry, petroleum refineries and petrochemical plants as well as copper and zinc plants and incinerators. 


WHAT'S HAPPENING

Alan Blair, Harry Dahme, Jennifer Danahy, David Estrin, Paul Granda and Mark Madras were all recognized in Environment listing in the 2011 edition of The International Who's Who of Business Lawyers, published by Who's Who Legal.

On September 15, 2011 at The Environmental Law Institute and Gowlings will present: "The Greening of Canadian Oil Sands: A View Across the Border".  Bituminous sands, or "oil sands," in Canada supply much of the crude used in the United States. The Keystone XL project, if approved, would nearly double imports of crude from western Canada. Many policymakers favor the use of the Canadian product because it reduces domestic reliance on Middle Eastern oil imports. Environmentalists have expressed concerns about the adverse environmental impacts of oil sands extraction which include deforestation, water quality and resource impacts, air pollution, and the larger greenhouse gas footprint created by the extraction process. With technology improvements, these impacts have diminished, but many questions remain. This seminar will provide an overview of law and policy of Canadian oil sands extraction, as it compares to the United States resource extraction regime.  Speakers include: James H. Barkley, Partner, Baker Botts LLP (moderator);  Jennifer Grant, Oilsands Program Director, The Pembina Institute; Tim Shipton, President, Alberta Enterprise Group; Roger Ramcharita, Director of Clean Energy, Alberta Environment ; and Lisa Jamieson, Environmental Counsel, Gowling Lafleur Henderson LLP. 

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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