Environment @ Gowlings: October 6, 2009

Edited by Harry Dahme

FEDERAL NEWS

• Environmental Enforcement Act
  
• Biofuel Review Provision in Force
  
• Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations
  
• Amendments to Phosphorus Concentration Regulations
  
• Metal Mining Effluent Regulations Amended to Include Hydrometallurgy
  
• New VOC Regulations for Automotive Refinishing Products
  
• Chemicals Management Plan - Batch 10 and Batch 11 Substances
  
• Draft Rules for Federal Greenhouse Gas Offset System Released
  
• Greenhouse Gas Reporting Requirements Released
  
• Administrative Agreement with Quebec Regarding Pulp and Paper and Metal Mining
  
• Code of Practice
  
• Significant New Activity Notices
  
• Auditor General Reports on Export Development Canada
  

PROVINCIAL NEWS

ALBERTA:

• Alberta Implements its Remediation Certificate Regulation
  
• Lubricating Oil Material Recycling and Management
  
• Alberta - Bill 14 - Carbon Capture and Storage Funding Act
  

ONTARIO:

• Toxics Reduction Act, 2009 Receives Royal Assent
  
• Lake Simcoe Protection Act, 2008
  
• Phase 2 of E-Waste Program Approved
  
• Waste Diversion Plan Submitted for Municipal Hazardous or Special Waste
  
• Amendments Proposed to Air Pollution Regulation
  
• Sector-Wide Standards for Air Pollution: Forest Products and Foundries
  
• Draft Green Energy Act Regulations Released for Comment
  
• Environmental Assessment Exemption Extended to 2012
  
• Discussion Paper on Source Water Protection
  
• Water Resources Policy Paper Released
  
• Amendments Proposed to Reduce Lead in Drinking Water
  
• Housekeeping Amendments Regarding Sewage Systems
  

QUEBEC:

• The MSDEP 2009-2014 Strategic Plan
  
• Climate Change Legislation Enacted
  
• Protection of Water Resources in Quebec - Bill 27
  
• 2006-2012 Climate Change Action Plan - Third Annual Report
  

FEDERAL NEWS

Environmental Enforcement Act

As reported in our last edition, the Environmental Enforcement Act received Royal Assent on June 18, 2009. The Act amends environmental legislation administered by Environment Canada including: the Canadian Environmental Protection Act, 1999; the Canada Wildlife Act, the Migratory Birds Convention Act, 1994, theWild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, theAntarctic Environmental Protection Act, the International River Improvements Act, the Canada National Parks Act, the Canada National Marine Conservation Areas Act and the Saguenay-St. Lawrence Marine Park Act.

The statute sets minimum fines for serious environmental offences of between $5,000 for individuals and $500,000 for corporations. The act also raises maximum fines to as high as $6 million. Enforcement officers are given new investigative powers and courts are given sentencing guidance so that environmental damages, prior convictions and other relevant factors are taken into account and treated as aggravating factors. Administrative penalties may be imposed to address less serious environmental offences. For more information see:
http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=2ADA2898-0852-46C6-97CF-C27DF9FF8D00.

Biofuel Review Provision in Force

On June 26, 2008, amendments to CEPA, 1999 were passed dealing with biofuels. In June, the Governor General in Council fixed September 28, 2009 as the coming into force date for these amendments. The amendments provide for a review of the environmental and economic aspects of biofuel production by Parliamentary committee a year after the amendments come into force and then every two years thereafter. The amendments provide certain exemptions for biofuels in transit and biofuels produced for export, and establishes authority for the drafting of regulations governing: the blending of fuels; book keeping regarding the production, blending or sale of biofuels; reporting in relation to the foregoing; and adverse effects of fuels or additives. There is also regulatory authority to exempt certain small-scale producers and importers and the ability to target regulations to specific classes of regulated entities on grounds ranging from feedstock and production capacity to fuel source, fuel condition of use, place of use or time of year of use. For the text of the amendments see
http://laws.justice.gc.ca/en/ShowFullDoc/an/2008_31//20090921/en.

Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations

Hexavalent chromium is a known carcinogen in humans and causes negative impacts to aquatic organisms. Regulations are now in force requiring facilities that use more than 50 kg of chromium trioxide per calendar year to reduce air emissions of hexavalent chromium, using one of three approved control methods. The regulations are intended to standardize permissible air emissions of hexavalent chromium, which is created by use of chromium trioxide, in the face of disparate provincial regulations.

The regulations allow users to choose between point source control, limiting surface tension, or use of a tank cover. Specific release limits are established, and inspection, maintenance and reporting obligations are imposed by the new regulations. Tests must be performed initially as prescribed by the regulations and then every 5 years thereafter. Tests must also be performed when specific modifications are made to the system such as replacement of a control device, increase in the surface area of the solution in the tank >25%, installation of additional tanks to increase total surface area >25% or a change to the ventilation system connected to the tank. Depending upon the control method chosen, users will have between 3 and 30 months to put the required measures into place.

Environment Canada estimates that the release of up to 31 tonnes of hexavalent chromium will be avoided as a result of the required control measures. The estimated monetary benefit is over $58 million, principally as a result of avoided health care costs. See Canada Gazette, June 24, 2009.

Amendments to Phosphorus Concentration Regulations

Amendments to the Phosphorus Concentration Regulations (SOR/89-501) will come into effect on July 1, 2010. These amendments lower the concentration of phosphorus permitted in household laundry detergent and dishwashing compound to not more than 1.1% by weight expressed as phosphorus pentoxide or .5% by weight expressed as elemental phosphorus. The amendments also introduce equivalent limits for other household cleaning products. Concentrations for commercial or industrial detergent remains at 5% expressed as phosphorus pentoxide and 2.2% expressed as elemental phosphorus, by weight. The concentrations must be determined by an accredited laboratory and manufacturers and importers must maintain records confirming compliance for five years. See Canada Gazette, June 28, 2009.

Metal Mining Effluent Regulations Amended to Include Hydrometallurgy

Amendments registered in June expanded the application of the Metal Mining Effluent Regulations (SOR 2002-222) to encompass the process of hydrometallurgy, and more specifically to designate Sandy Pond in Newfoundland as a tailing impoundment area. The amendments will apply generally to any facility that uses the process of hydrometallurgy, but were proposed by Department of Fisheries and Oceans ("DFO") in response to a proposed nickel-processing facility in Newfoundland and Labrador that would use the technology for the first time in Canada.

Prior to these amendments, the MMER did not apply to hydrometallurgy, which generates fewer air emissions than conventional technology but that produces solid waste that will produce acid if exposed to air. The amendments were made by DFO to ensure that fish and fish habitat are protected from effluent when wastes are disposed underwater. See Canada Gazette, June 10, 2009.

New VOC Regulations for Automotive Refinishing Products

The federal government has issued new Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations under the Canadian Environmental Protection Act, 1999, with a view to reducing ground-level ozone which causes smog. The regulations establish VOC concentration limits for 14 categories of automotive refinishing products, such as colour coatings and surface cleaners. The prohibition against importing or manufacturing products with concentrations above the limits will come into force on June 18, 2010 (one year after the regulations were registered), while the prohibition against selling such products will come into force six months after that. Manufacturers or importers may apply for a temporary exemption if it is not technically or economically feasible to meet the limits. For further information please see the Canada Gazette.

Chemicals Management Plan - Batch 10 and Batch 11 Substances

Environment Canada is assessing approximately 200 high priority substances on Canada's Domestic Substances List ("DSL") for toxicity, use and the need for regulatory control. The DSL is the list of substances that were in commercial use between 1984 and 1986, pre-dating the federal notice and assessment protocol for toxicity that came into effect under the New Substance Notification Regulations. Environment Canada is releasing batches of 15-30 substances every three months. Industry is then given six months' time in which to submit prescribed information to Environment Canada for review.

In June, Environment Canada published a list of 12 Batch 10 substances including but not limited to certain Rosin and Resin acids, hydrazine, cobalt, and cobalt chloride. Obligations apply to persons who used more than 1,000 kg of the listed substances or manufactured or imported more than 100 kg during 2006, whether alone or in a mixture. Unless new information is received by December 17, 2009, Environment Canada plans to open a 60-day public comment period on the draft screening assessment and proposed control measures in March 2010. Further information is available at:
http://www.chemicalsubstanceschimiques.gc.ca/challenge-defi/batch-lot_10_e.html.

In relation to Batch 11 substances, Environment Canada gave notice that technical information would be published in September 2009. Industry will subsequently be challenged to submit information set out in the technical documentation.

Draft Rules for Federal Greenhouse Gas Offset System Released

On June 13, the Minister of the Environment published two draft rules and program documents for a 60-day public comment period, includingCanada's Offset System for Greenhouse Gases: Program Rules for Project Proponents and Canada's Offset System for Greenhouse Gases: Program Rules for Verification and Guidance for Verification Bodies. Together, these two guidance documents establish the proposed rules governing the creation of offset credits, from implementation of projects to credit issuance, including project verification.

To be eligible under the Canadian Offset System credits must be real, incremental, quantifiable, verifiable and unique. Offset credits can be generated in those sectors of the Canadian economy which will not be subject to a future cap on greenhouse gas emissions, and for projects where an established Quantification Protocol exists. The offset system will be based upon international standard ISO 14064-2 and the plan is to credit reductions achieved on or after January 1, 2011 rather than January 1, 2008 as previously proposed. For detailed discussion of the drafts, please consult Gowlings' Climate Change Bulletin, available at:
http://www.gowlings.com/resources/enewsletters/climateChange/Htmfiles/newsflash_20090611.en.html

Greenhouse Gas Reporting Requirements Released

On July 11, 2009 a Notice requiring the reporting of greenhouse gas emissions for the year 2009 was published in the Canada Gazette. The reporting threshold has been lowered from 100,000 tonnes CO₂ equivalent to 50,000 tonnes. Facilities that exceed this threshold must report the prescribed information to Environment Canada on or before June 1, 2010.

Administrative Agreement with Quebec Regarding Pulp and Paper and Metal Mining

On June 13, 2009, the Minister of the Environment published draft notice of a proposed administrative agreement between the federal government and the government of Quebec regarding environmental compliance in the pulp and paper and metal mining sectors. Pursuant to the draft agreement, Environment Canada and the DFO would delegate information gathering and inspection obligations to Quebec. Quebec would forward data required pursuant to federal regulations and would undertake a program of inspection including at least one annual inspection per mill and metal mine, and transmit inspection reports completed after January 1, 2009 to Canada. The notice is available at
http://www.gazette.gc.ca/rp-pr/p1/2009/2009-06-13/html/notice-avis-eng.html#d101.

Code of Practice

The Minister of the Environment has given notice of the availability of an Environmental Code of Practice for Metal Mines, in support of the Metal Mining Effluent Regulations (SOR 2002-222) under the Fisheries Act, R.S. 1985, c. F-14. The Guide can be accessed at
www.ec.gc.ca/CEPARegistry/default.cfm.

Significant New Activity Notices

Environment Canada has published SNaC Notices for two substances, Dimethyl-2-methyl glutarate used in consumer products that may result in direct or potential exposure, and vanadium carbide used in amounts greater than 10 kg/calendar year. The notices are available at
http://www.ec.gc.ca/CEPARegistry/notices/NoticeTypeList.cfm?intNoticeType=1.

Auditor General Reports on Export Development Canada

Canada's Auditor General ("AG") released an environmental report on Export Development Canada ("EDA") in June 2009. In general, the AG found that EDC's environmental review processes were addressing most elements of the Equator Principles, the requirements of the OECD's Common Approaches and all but one of the standard elements used by other G7 export credit agencies. The AG also found that EDC had responded to the recommendations made during the previous audit conducted in 2004.

EDC was reported to be monitoring and reporting on environmental obligations, analyzing short term credit insurance product risk from the environmental perspective, ensuring staff had appropriate skills and training, and properly implementing its Environmental Review Directive. EDC was urged to consider emerging areas such as tracking of greenhouse gas emissions from the projects that it financed. The report is available at
http://www.oag-bvg.gc.ca/internet/English/parl_otp_200906_e_32632.html.

NEWS FROM THE PROVINCES

ALBERTA:

Alberta Implements its Remediation Certificate Regulation

Section 117 of the Environmental Protection and Enhancement Act allows for the issuance of remediation certificates for land that has been properly remediated where a release of a substance into the environment has occurred and that release has caused, is causing or has the potential to cause an adverse effect. On June 3, 2009, the Alberta Remediation Certificate Regulation became law, providing a form of regulatory closure for sites that are voluntarily remediated.

Alberta Environment will be implementing the remediation certificate program using a phased approach, focusing first on the province's petroleum storage tank sites. Remediation Certificates have been available in relation to petroleum storage tank sites since June 2009.

Alberta Environment has released the Guide to Remediation Certificates for Petroleum Storage Tank Sites (the "Guide") to provide guidance on the operation of the new remediation program. The Guide notes that "remediation certification is a voluntary process of regulatory liability closure for a remediated area. If the remediated area meets the Alberta Tier 1 Soil and Groundwater Remediation Guidelines (Alberta Environment, 2007 a, as amended) and Alberta Tier 2 Soil and Groundwater Remediation Guidelines (Alberta Environment 2007b, as amended), a remediation certificate may be issued."

A link to Alberta Environment's website regarding Remediation Certificates for Petroleum Storage Tanks can be viewed at:
http://environment.alberta.ca/3498.html.

A copy of the Remediation Certificate Regulation can be viewed at:
http://www.qp.alberta.ca/574.cfm?page=2009_154.cfm&leg_type=Regs&isbncln=9780779741663.

A copy of Alberta Environment's Guide to Remediation Certificates for Petroleum Storage Tank Sites can be accessed at:
http://environment.alberta.ca/3501.html

Lubricating Oil Material Recycling and Management

The Lubricating Oil Material Recycling and Management Amendment Regulation extended the life of the Lubricating Oil Material Recycling and Management Regulation from June 30, 2009 to June 30, 2010.

Alberta - Bill 14 - Carbon Capture and Storage Funding Act

The Carbon Capture and Storage Funding Act, SA 2009 cC-2.5, received royal assent on June 4^th, 2009 by the Alberta Legislature. The purpose of the Act is to encourage and expedite the design, construction and operation of carbon capture and storage projects in Alberta. The Minister of Energy has been granted a budget of $2 Billion dollars to fund grants to proponents which the Province hopes will encourage the development of carbon capture and storage projects within the province. For more information please see:
http://www.assembly.ab.ca/net/index.aspx?p=bills_status&selectbill=014

ONTARIO:

Toxics Reduction Act, 2009 Receives Royal Assent

Ontario's Toxics Reduction Act was passed by the Ontario Legislature on June 3, 2009, and received Royal Assent on June 5, 2009. The Act will not come into force until regulations are developed. An overview of the legislation was provided in the last edition of Environment@Gowlings, and can be accessed at
http://www.gowlings.com/resources/enewsletters/environ/Htmfiles/V6N03_20090716.en.html#11 .

Lake Simcoe Protection Act, 2008

The Lake Simcoe Protection Act, 2008 ("Act") received Royal Assent in December 2008. The Lake Simcoe Protection Plan together with a General Regulation (O. Reg. 219/09) supporting the Act came into effect on June 2, 2009, and with them key provisions of the Act came into force.

The Act generally takes an ecosystem approach to the protection of Lake Simcoe, and is comprehensive in the issues addressed and multi-disciplinary in its approach to regulatory control. The Act addresses issues ranging from water quality degraded by toxins, pathogens and nutrients including phosphorus, to loss and fragmentation of natural areas, invasive species, adaptation to climate change, changes to the hydrologic cycle, and recreational activities. Targets include reduced phosphorus loads, achievement of the protection of 40% of the "high quality" natural vegetative cover within the watershed, naturalized riparian zones, maintenance of stream flow, prevention of invasive species introduction, and reduced beach closings for Lake Simcoe.

Policies in the Plan impact decision-making undertaken pursuant to the Planning Act, the Condominium Act and a variety of prescribed instruments including sewage works approvals and permits to take water under the Ontario Water Resources Act, Conservation Authority Act permits to develop, to interfere with a wetland or to change divert or interfere with an existing channel, work permits under thePublic Lands Act, approval under the Lakes and Rivers Improvement Act, and licences pursuant to the Fish and Wildlife Conservation Act, 1997. Decisions pursuant to these statutes must conform to Plan policies. Proposals with "significant impact" on ecosystem health, including proposed settlement area boundary expansions, proposals near the Lake Simcoe shoreline or certain natural heritage features will also be affected by the Plan. There is some grandfathering for permits where development applications have already been granted. Municipalities are now required to bring their Official Plans into conformity with the Plan at the time of their five-year reviews.

For further information see
http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTAzNjc2&statusId=MTYwMzM4&language=en.

Phase 2 of E-Waste Program Approved

After a 30-day comment period, the Minister of the Environment approved a revised Waste Electrical and Electronic Equipment ("WEEE") Program Plan ("Plan") on August 14, 2009. Phase 1 of the Plan has been in effect since April 2009, and covers materials including as desktop and portable computers, monitors, printers and televisions. Under the revised Plan, which will take effect in April 2010, Phase 2 materials will also be covered including telephones, cellular devices and pagers, cell-enabled PDAs, copiers, scanners, cameras and other audio-visual equipment (video recorders, players and projectors, stereo equipment, audio players and recorders).

Ontario Electronic Stewardship ("OES") has committed to increasing the number of collection sites and events to a target of 448 permanent sites and 304 collection events by Year 5. Overall diversion targets reach 56% of the available e-waste by Year 5. For more information see
http://www.ontarioelectronicstewardship.ca.

Waste Diversion Plan Submitted for Municipal Hazardous or Special Waste

On July 31, 2009, Waste Diversion Ontario submitted an updated program plan to the Minister of the Environment for the diversion of Municipal Hazardous or Special Waste ("MHSW"), in accordance with the Waste Diversion Act, 2002. The first phase of the program, covering paints, solvents, single use batteries, antifreeze, oil filters, oil containers, pressurized containers, pesticides and fertilizers, had already been approved and entered into force on July 1, 2008. The revised plan now covers materials in Phase 2 (i.e. rechargeable batteries, aerosol containers, pharmaceuticals, syringes, fluorescent lamps, portable fire extinguishers, mercury containing measuring devices, and mercury switches) and Phase 3 (all remaining MHSW as defined in the MHSW Regulation but not captured by Phases 1 or 2). If approved by the Minister, the revised plan is expected to enter into force on July 1, 2010.

Further information is available on the EBR Registry.

Amendments Proposed to Air Pollution Regulation

The MOE has proposed amendments to O. Reg. 419/05 (Air Pollution - Local Air Quality) to introduce new or updated standards for the following air contaminants: acrolein; benzene; 1,3 - butadiene; hexavalent chromium and chromium and chromium compounds divalent and trivalent; dioxins, furans and dioxin-like PCBs; manganese and manganese compounds; nickel and nickel compounds; polycyclic aromatic hydrocarbons and uranium and uranium compounds. Further information is available on the EBR Registry.

Sector-Wide Standards for Air Pollution: Forest Products and Foundries

Ontario Regulation 419/05 establishes air quality standards based on environmental and human health impacts. Facilities may apply for site-specific alterations to standards where they are unable to achieve regulatory standards within the specified timelines.

The MOE is now proposing to amend O. Reg. 419/05 to approve sector-wide alterations, in place of facility by facility exemptions. Two specific proposals have been posted for comment over the summer months, including a proposal for the Forest Products sector and a proposal for the Foundry sector. If approved, a facility within these sectors would have the option of following the sector specific exemption and the operational practices set out therein, rather than the default criteria and timelines. Details are available at
http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA2NTE0&statusId=MTU5ODAy&language=en.

Draft Green Energy Act Regulations Released for Comment

The Green Energy and Green Economy Act, 2009 ("Act") received Royal Assent on May 14, 2009 but has not yet been proclaimed in force, pending the development of regulations pursuant to the statute. The Act is intended to facilitate the expansion of clean and renewable sources of energy including wind, water, solar, biomass and biogas power in Ontario. During the summer months the MOE and the Ministry of Natural Resources posted a proposed regulation and regulatory amendments pursuant to the Environmental Protection Act, the Environmental Assessment Act, and the Environmental Bill of Rights, 1993 for public comment.

In summary, the regulation and regulatory amendments are aimed at providing for a streamlined and coordinated provincial approval process, reducing duplication and providing certainty to project developers. A variety of exemptions are proposed including exemptions from the Electricity Projects Regulation (O. Reg. 116/01) for facilities <200 MW, exemptions for biomass generated at waste disposal sites from the Waste Management Projects regulation (O. Reg. 101/07) and exemptions for Crown undertakings in support of renewable energy projects such as municipal road and water crossing projects. The is also proposed to designate Renewable Energy Approvals under the EBR but to specify that Leave to Appeal provisions do not apply. In their place, an appeal as of right for third parties is proposed under the EPA.

Gowlings reported on the proposed regulations in Energy@Gowlings, which is available at
http://www.gowlings.com/resources/enewsletters/energy/Htmfiles/V7N07_20090622.en.html#4 .

Further information is available at
http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA2NDQ5&statusId=MTU5NjQ1&language=en.

Environmental Assessment Exemption Extended to 2012

The Ministry of Northern Development and Mines' ("MNDM") exemption from Ontario's Environmental Assessment Act for certain MNDM activities has been extended until 2012. The expiry date of two Declaration Orders has been extended, affecting mine hazard rehabilitation activities carried out using the Abandoned Mines Rehabilitation Fund, and disposition of certain rights to Crown resources. Each exemption typically affects fewer than five projects per year.

The Minister has extended the exemption to allow MNDM to complete a process of modernizing the Mining Act. The Minister's decision requires MNDM to develop a Class Environmental Assessment by December 2012, and to provide regular progress updates in the interim. MNDM must also develop a Memorandum of Understanding to address mitigation of cultural heritage resources. For more information see: The Ontario Gazette, June 27, 2009

Discussion Paper on Source Water Protection

The Ministry of the Environment ("MOE") is inviting input on the regulatory requirements to be applied to the development of source protection plans under the Clean Water Act, 2006. The MOE has issued a discussion paper outlining the minimum content requirements required pursuant to the legislation, approaches that could be used to reduce risks to drinking water, proposed regulations on drinking water threat policies, monitoring policies, consultation requirements, amendment procedures and progress reports. Comments may be submitted until September 23, 2009. See
http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA2NjQ4&statusId=MTYwMDA4&language=en.

Water Resources Policy Paper Released

The provincial Ministers of Natural Resources and the Environment have released a paper entitled "Stewardship - Leadership - Accountability: Safeguarding and Sustaining Ontario's Water Resources for Future Generations". The paper addresses three policy objectives:

1. Developing a water conservation and efficiency strategy, as required by the Great Lakes - St. Lawrence River Basin Sustainable Water Resources Agreement between Ontario, Quebec and the Great Lakes states;
   
2. Strengthening the regulation of new and increased intra-basin transfers (transfers of water from the watershed of one Great Lake to another) according to the Great Lakes - St. Lawrence River Basin Sustainable Water Resources Agreement; and
   
3. Implementing "Phase 2" of the water charges program by extending the existing charge to additional industrial water takers.
   

Further information, and a link to the paper, is available on the EBR Registry.

Amendments Proposed to Reduce Lead in Drinking Water

Amendments have been proposed to three regulations under the Safe Drinking Water Act, 2002: O. Reg. 170/03 (Drinking Water Systems), O. Reg. 243/07 (Schools, Private Schools, and Day Nurseries), and O. Reg. 248/03 (Drinking Water Testing Services). The amendments are addressed primarily towards improving the regulatory measures introduced in 2007 to reduce lead levels in drinking water. Further information is available on the EBR Registry.

Housekeeping Amendments Regarding Sewage Systems

Ontario has revoked Regulation 358 (Sewage Systems) as a housekeeping matter. Regulation 358 dealt with sewage systems that were previously regulated pursuant to the Environmental Protection Act, Part VIII, which was repeated in 1997 when responsibility for such systems was transferred to the Building Code Act or to Part V of the Environmental Protection Act as waste disposal sites. Further information is available on the EBR Registry.

QUEBEC:

The MSDEP 2009-2014 Strategic Plan

The Ministry of Sustainable Development, Environment and Parks recently tabled its 2009-2014 Strategic Plan (Plan Stratégique 2009-2014). The Plan sets out six strategic orientations in order to address the environmental issues faced by Quebec. These strategic orientations cover, namely, climate change and the reduction of air pollution, biodiversity conservation and sustainable management of water and other resources. The Plan also states that the Ministry will consider submitting amendments to the Environment Quality Act in order to increase the amounts of fines and to provide for the power to issue administrative financial penalties similar to those existing in other jurisdictions such as Ontario thus avoiding for certain offences having to go before the courts. The Ministry is also committed to increasing its knowledge relative to contaminants of emerging interest such as nanoparticles resulting from nanotechnology, anti-staining and anti-adhesive substances, industrial detergents, natural or synthetic hormones, and compounds used in the manufacturing of plastics or epoxy resins for which there are presently no specific criteria or standards and which can present a potential or real threat to human health or the environment. Although the Plan is effective until 2014, most of the objectives and interventions are targeted for between now and 2013.

Climate Change Legislation Enacted

The last issue of Environment@Gowlings reported that Quebec had enacted amendments to the Environment Quality Act establishing a framework for a cap and trade system for greenhouse gases. For a detailed review of the amendments please see the latest issue of Climate Change @ Gowlings.

Protection of Water Resources in Quebec - Bill 27

The National Assembly unanimously adopted on June 11, 2009 theAct to affirm the collective nature of water resources and provide for increased water resources protection (Act). The Act amends the Environment Quality Act (EQA) to add specific provisions pertaining to water resource protection and management. Although adopted the main provisions of the Act, and particularly the amendments to the EQA, will come into effect at a later date.

The Act confirms the legal status of water in Québec and its entity as a common heritage of the Québec nation. The "user-pays" principle is reflected in the Act through the power to subject the withdrawal of water in excess of 75,000 litres per day to the prior authorization of the Minister of Sustainable Development, Environment and Parks. According to the amendments, before authorizing any such withdrawal, the Minister will be required to ensure the protection of water resources. Besides giving priority to satisfying public health, sanitation, civil protection and drinking water supply needs, the Minister, before granting such authorization, will also be required to reconcile the protection needs of aquatic ecosystems and the needs of agriculture, industry, energy protection and other human activities, including recreation and tourism.

The amendments to the EQA further require that when making a decision on the exercise of the powers conferred to the Minister, the Minister shall take into account, in addition to specifically environmental impacts and public observations, the consequences of the withdrawal of water having regard to (1) the water use rights of other persons or municipalities in the short, medium and long terms, (2) the availability and distribution of water resources, with a view to satisfying or reconciling current and future needs of different water uses, (3) the foreseeable development of rural and urban areas, particularly as regards the objectives of the land use planning and development plan of any regional county municipality or metropolitan community affected by the withdrawal, and the balance that must be maintained between different water uses, and (4) the economic development of a region or municipality. If granted, the water withdrawal authorization will be valid for 10 years.

In addition, the Act enables the Attorney General of Québec to institute an action "in the name of the State as custodian of the interest of the nation in water resources" against a person who, through fault or illegal act, caused damage to water resources, including impairment of their physical, chemical or biological properties, ecological functions or quantitative status. The action will allow one or more of the following remedies: restoration of the water resources to their original state or state similar to their original state, reparation through compensatory measures, or reparation by payment of compensation in a lump sum or otherwise.

The Government adopted on August 12, 2009, the Regulation respecting the declaration of water withdrawals (O.C. 875-2009) that will come into force on September 10, 2009. The purpose of the Regulation is to ensure a better knowledge and a better protection of the environment by allowing the Government to assess the impact of the withdrawals on water resources and ecosystems, and to allow the Government to establish measures to prevent conflicting uses of water resources. It is also intended to achieve more responsible water use through withdrawal accountability mechanisms by making the largest water withdrawers in the Province more aware of the intrinsic value of water resources and the responsibility each person has to preserve the quality of water and sufficient quantity of it to meet the needs of the current and future generations.

The Regulation requires any person or municipality "withdrawer" whose water withdrawals total an average daily volume of 75 cubic metres or more per day to submit an annual declaration describing the withdrawal activities by specifying the monthly volumes of water withdrawn. The Regulation will not apply to domestic use withdrawals (use of a personal well or surface water intake for one household only), water withdrawals to supply vehicles either for the needs of persons or animals being transported or for ballast, or other needs incidental to the operation of the vehicles, water withdrawals exclusively for firefighting purposes, water withdrawals from a distribution system, those intended for agricultural or fish-breeding purposes and those intended for hydroelectric power generation. The withdrawers required to submit an annual declaration, are required to keep a register indicating the description of the withdrawal site and, where applicable, the measuring equipment or estimation method used, as well as the results of the measurement of the volumes of water withdrawn, the description and date, where applicable, of malfunctions, breakdowns, abnormalities or other defects having affected the measuring equipment, and repairs or adjustments made. Obligations pertaining to the measuring equipment and the accuracy of measured data are also set forth under the Regulation. A contravention of applicable provisions of the Regulation can render the withdrawer liable, in the case of a company, to a fine of $6,000 to $100,000 for a first offence and to a fine of between $12,000 to $200,000 in case of a second or subsequent offence. See:
www.assnat.qc.ca/eng/39legislature1/pv/PA20090611.pdf

2006-2012 Climate Change Action Plan - Third Annual Report

In June, the Ministry of Sustainable Development, Environment and Parks (MSDEP) made public its third annual report highlighting the province's performance in connection with it's Climate Change Action Plan 2006-2012 (Troisième bilan annuel du Plan d'action 2006-2012 sur les changements climatiques). The Action Plan has a $1.55 billion budget to implement the 26 measures that are recommended to reduce greenhouse gases and to help adapt to climate change impacts.

Highlights of the report include the following:

Energy Sector

Three measures to be administered by l'Agence d'efficacité énergétique (AEÉ) have been implemented in the energy sector. The Heavy Oil Consumption Reduction Program offers financial help for companies implementing more energy efficient measures or using alternative energies that produce less greenhouse gases, such as natural gas or forest biomass. Second, the AEE offers support to the manufacturing sector through a program that provides help to improve energy efficiency in enterprises using light oil, propane, or butane as fuel for their industrial process or for heating. Third, the AEÉ promotes the optimisation of refrigeration processes in the recreational and commercial sectors, as well as in the food-processing industry. This program involves the reduction of greenhouse gases by favouring more effective technologies, such as integrated refrigeration systems, heating systems and ventilation or air conditioning systems.

Transportation Sector

In the transportation sector, the AEÉ has launched the program to promote energy efficiency in transportation of goods. This financial aid favours the acquisition of energy efficiency improving equipment for vehicle fleets such as better heating or air-conditioning systems or on-board computers or systems to improve fleet operations. The government will also contribute to increase investments in marine and rail transportation aimed at technological improvements to increase energy efficiencies of ships and locomotives. In its last budget, the government also provided tax credits to encourage the purchase or the leasing of eco energy vehicles such as hybrid or electric vehicles. The tax credit is a function of the amount of greenhouse gases produced by the automobile. The more a vehicle is environmentally efficient, the greater the tax credit will be.

Industrial Sector

According to the report, major advances have been made in the industry sector. The province of Quebec has thus embarked last June, together with Ontario, on the provincial and territorial carbon market initiative. The government has opted for a regulatory cap and trade approach on greenhouse gas emissions and, since April 2008, the province of Quebec is now a member of the Western Climate Initiative. Following this decision, the National Assembly, as mentioned in our previous edition of this newsletter, adopted Bill 42 amending the Environment Quality Act to eventually introduce the greenhouse gas emissions cap and trade system.

Residual Materials Management

The report states that the government is also committed to the improvement of the residual materials (waste) sector. Indeed, from 1990 to 2006, there has been a 24% decrease in the emission of greenhouse gases in this sector, mainly as a result of the obligation to recover and eliminate biogas generated in landfill sites. Also, since December 2007, when the government launched the Biogas Program, it is possible to purchase greenhouse gas reductions obtained through the recovery, reclamation or elimination of biogases generated by landfill sites that are not subject to the Regulation respecting the landfilling and incineration of residual materials. Eight such projects selected following the February 2008 request for proposals are scheduled to begin recovering biogases this summer.

Agricultural Sector

Finally, as announced in the March 2009 budget, the government intends to put in place financial incentives to help capital investments towards bio energy production such as biomethanisation aimed at aiding, for example, municipalities to install biomethanisation equipment to produce biogases that can be used alternatives to fossil fuels. This would represent total investments of 500 million dollars according to the report. The Prime-Vert Program also provides for new measures to allow agricultural operations to receive financial help towards the use of technologies to reduce their greenhouse gas emissions. Furthermore, the Ministry of Natural Resources and Wildlife has introduced its Action Plan for the reclamation of forest biomass. This plan aims an annual of 1,1 million ton greenhouse gas reduction until 2016./p>

The complete report is available in French at:
www.mddep.gouv.qc.ca

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