Ontario has begun to lay the technical groundwork for joining a
North American cap-and-trade network designed to control and reduce
greenhouse gas (GHG) emissions. On October 7, 2009, the Ministry of
the Environment posted its draft Greenhouse Gas Emission Reporting
Regulation and Guideline on the Environmental Registry (under EBR
Registry # 010-7889). The deadline for public comment is November
6, 2009. The proposed regulation only covers facilities that release at
least 25,000 tonnes of carbon dioxide equivalent (CO2e) per year.
However smaller emitters and fuel suppliers have been put on notice
that they may also be subject to annual reporting requirements once
a continental cap-and-trade system is up and running. Ontario is
still working on a system for allocating CO2 allowances among
emitters and setting carbon prices. The regulation proposes an annual reporting system for large
emitters. The first report, covering their 2010 emissions, must be
submitted by June 1, 2011. While smaller facilities (emitting
between 10,000 and 25,000 tonnes per year) are not required to
report, MOE is encouraging voluntary reporting so that they will be
prepared to adapt to emerging North America-wide requirements. The draft regulation provides a certain amount of flexibility in
quantifying GHG emissions for the first reporting period. The
accompanying Guideline outlines alternative quantification methods
that may be used for calculating 2010 emissions, and the mandatory
quantification methods that will be required thereafter. MOE has
adopted methods from the Western Climate Initiative (WCI) and the
U.S. Environmental Protection Agency. Adding to the cost and complexity, starting with the 2011
emission summaries, each facility must obtain verification by an
authorized third party. Verification reports will be due by
September 1, starting in 2012. The one-year delay will provide time
to assemble sufficient verification capacity, in accordance with
the ISO 14064 and 14065 requirements. In the interim, MOE is
encouraging emitters to have their reports verified on a voluntary
basis. The proposed regulation does not cover fuel suppliers for the
transportation, residential, commercial and other industrial
sectors. As WCI finalizes its GHG quantification methods for fuel
suppliers, Ontario will consider incorporating them into the
regulation. In addition, the province still needs to set benchmarks
to allocate CO2 allowances for participants, as well as address
carbon cost scenarios for different sectors. Ontario continues to work with the federal government and other
provinces to harmonize reporting requirements, quantification
methods and verification processes. The province is continuing
discussions with the federal government on a
'single-window' reporting system. In a related development, Bill 185 has been referred to the
Standing Committee on General Government. The Bill re-enacts
s.176.1 of the Environmental Protection Act to authorize
the making of regulations with respect to GHG emissions trading and
other financial instruments. Hearings are scheduled for the
beginning of November. W+SEL will continue to track and report on developments in these
key areas. Upon receiving Royal Assent, the government said some
provisions will come into effect immediately Proposed revisions to Mining Act pass Third
Reading On October 21, 2009, an extensive package of amendments to the
province's Mining Act passed Third Reading in the
Legislature. The revisions contained in Bill 173 will formalize
consultation with Aboriginal communities affected by exploration
and mining activities. It will also require prospectors to undergo
"awareness" training, and introduce a dispute resolution
process to resolve problems when discussions over exploration
permits and closure plans run into difficulty. The details of the
required consultation, training and dispute resolution mechanisms
won't be known until the draft regulations implementing those
programs are released for comment. Introduced on April 30, 2009, Bill 173 was subject to
acrimonious hearings this summer before the Standing Committee on
General Government. Delegations from Aboriginal groups said there
had been insufficient pre-consultation on the revisions and that
the amended Act still will not require "informed consent"
before mining takes place on Aboriginal lands. There were also
objections from other stakeholders about the retraining of
long-time prospectors, the new map staking system, and protections
for landowners in Northern Ontario who don't hold a
property's mineral rights. Unfortunately, the committee's
clause-byclause review of the Bill was cut short by a time
allocation motion, and the final version tabled in the Legislature
contains few of the amendments recommended by the Aboriginal,
mining industry, prospecting or environmental groups that appeared
before the committee. With the passage of the revised Mining Act, the
Ministry of Northern Development, Mines and Forestry will
immediately begin to develop regulations and policies to implement
many of the new provisions. These will cover: the criteria for
sites of Aboriginal cultural significance and the process for
withdrawals; exploration plans and permits to ensure these
activities are carried out with the appropriate Aboriginal
consultation; closure plans for advanced exploration and mine
development projects; the dispute resolution process for
Aboriginal-related mining issues; the implementation of map
staking; and a prospector awareness program to ensure they are
aware of the new provisions. The Ministry says it will be
"consulting broadly" to develop the regulations. "We
are committed to providing more opportunity for input from
stakeholder groups, aboriginal organizations and the public to make
sure we get it right." On October 23, 2009, the Government of Ontario released
its "Proposed Growth Plan for Northern Ontario", in
accordance with s.7(1)(c) of the Places to Grow Act, 2005.
The document is posted on the Environmental Registry under EBR
Registry # 010-8128. The deadline for public for comment is
February 1, 2010. Additional background information is available
online at www.placestogrow.ca Growth Plan promotes development of Northern
Ontario Ontario has proposed a 25-year Growth Plan for the North to
"guide future policy development and infrastructure
investments by the province." The province's Far North
Act, still being fine-tuned in a legislative standing
committee, addresses the environmental protection of just the upper
reaches of the region. The Growth Plan covers all 800,000 square
kilometres of Northern Ontario and is designed to ensure its
economic and employment growth. More a grab bag of proposed
policies and programs than a coordinated strategy, the plan is
intended to The Plan is being led jointly by the Ministry of Energy and
Infrastructure and the Ministry of Northern Development, Mines and
Forestry. Public meetings will be held through November and
December to solicit feedback from residents, Aboriginal peoples,
community leaders, business, industry and other stakeholders. The
deadline for written comments on the Proposed Growth Plan is
February 1, 2010. More information is available on the Places to
Grow website at www.placestogrow.ca The Ministry of Economic Development and Trade has issued a
backgrounder on the Ontario-Quebec Trade and Economic Agreement,
signed by the two provinces on September 11, 2009. The Agreement is
designed "to increase investment and trade between Ontario and
Quebec, promote innovation and reduce long-standing barriers to
business." Ontario and Quebec have agreed to make developing
an emissions trading system a priority. Both the agreement and the
Ministry background statement are posted on-line at: www.ontariocanada.com/ontcan/1med/en/about_spotlight_en.jsp This deal has been in the works since 2007 and covers a lot of
ground, including high speed rail links, the mutual recognition of
labour qualifications, vetting proposed regs that may affect
interprovincial trade, developing harmonized rules for certain
financial services and transportation standards, and ensuring equal
access to public procurement opportunities. The two provinces have
also agreed to cooperate on a series of joint environmental and
energy-related measures to "support ecological protection and
encourage sustainable development." These measures will
address The consolidated MHSW program plan was submitted to the
Minister on July 10, 2009, and posted to the Environmental Registry
for comment from July 31 to August 30, 2009, under EBR Registry #
010-7325. The Minister approved the plan, as submitted, on
September 22, 2009. The proposed WEEE program was submitted to the Minister
on July 10, 2009; the revised program was approved on August 14,
2009; and notice of the policy decision was posted to the Registry
on August 28, 2009, under EBR Registry # 010-7162. Minister approves hazwaste and WEEE diversion
plans The Minister of the Environment has approved the revised list of
Municipal Hazardous or Special Wastes (MHSWs) to be added to Waste
Diversion Ontario's new, consolidated MHSW Program Plan. The
plan, which would commence July 1, 2010, also contains more
aggressive collection and recycling targets, operational
improvements, and fee setting and costing details. Phase 1 of the MHSW plan, which took effect July 1, 2008,
covered the diversion of paints, solvents, single use batteries,
antifreeze, oil filters, oil containers, pressurized containers,
pesticides and fertilizers from residential and small quantity
IC&I generators. The consolidated plan fine tunes the current requirements and
expands the MHSW list to include all other batteries (except lead
acid batteries from vehicles), aerosol containers, pharmaceuticals,
syringes ("sharps"), fluorescent lamps, portable fire
extinguishers, mercury-containing measuring devices (such as
thermometers and thermostats) and mercury switches, as well as
flammables and corrosives. Pharmaceuticals and "sharps"
would be collected from residential sources only. Over the next five years, the plan would increase the number of
permanent MHSW depots, mobile collection events, participating
retailers/service centres that accept MHSWs, and specialty service
channels (including diversion by recyclers and contractors).
Stewardship Ontario will also test an innovative
"depot-in-a-box" approach. The Minister has also approved the revised Waste Electrical and
Electronic Equipment (WEEE) program, as submitted by Waste
Diversion Ontario. When posted on the Registry back in July, the
proposed program received a modest number of generally supportive
comments from industry, municipalities and municipal associations.
These provided specific implementation advice, sought clarification
around program implementation details, and commented on the
incentives offered to cover collection costs. No unsupportive
comments were received. The National Roundtable on the Environment and the Economy
(NRTEE) has submitted to the Minister of the Environment its advice
on the federal government's 2009 Climate Change Plan and
Statement, in accordance with the Roundtables's obligations
under the Kyoto Protocol Implementation Act. There was no Environment Canada press release, and the report
was buried on the Environment Canada website. No wonder. The NRTEE
document offers an unflattering assessment of Ottawa's current
climate change plans. While the Roundtable says the "government continues to make
improvements to its forecasting", many of the greenhouse gas
(GHG) emission reductions attributed to specific measures and
policies are "overestimated" – by a factor of
three or four-fold – due to methodological issues. For
example, emission reductions related to contributions to the
Technology Fund are counted the year the contributions are made
rather than years down the road when the research might actually
bear fruit. Credits for past action may be included in current year
reduction estimates. NRTEE also details examples of double counting (where the whole
is actually less than the sum of the parts), additionality and
"free-ridership" (counting reductions that would have
occurred in any event) and rebounding (ignoring an increase in
users and the resultant emissions due to the popularity of a new
technology). NRTEE also says there are "deficiencies in
relying exclusively on the annual assessment approach —
with its short-term focus and unclear definition of emissions
— as the formal accountability mechanism". NRTEE was not able to assess the likely effectiveness of the
federal regulatory program for industrial GHG emissions, which will
be responsible for the bulk (some 55%) of the forecast GHG
reductions since the details of that program are not expected to be
released before year's end. Notice was published in the Canada Gazette, Part
I (Vol. 143, No. 32) on August 8, 2009. The NRTEE assessment
and recommendations are posted on the Environment Canada website
(www.ec.gc.ca): under "Topics"
click on "Climate Change" and then on "Reports"
to find the 2009 NRTEE document. Ontario's list of species at risk gets longer and
the status of the polar bear has deteriorated to
"threatened" The Ministry of Natural Resources has announced amendments to O.
Reg. 230/08 (Species at Risk in Ontario List (SARO)) in response to
the recent report of the Committee on the Status of Species at Risk
in Ontario (COSSARO). A change in the status of species to
"threatened" or "endangered" automatically
triggers habitat protection provisions in the Endangered
Species Act, 2007 (ESA 2007) and requires the ministry to
draft and implement a species recovery strategy. The COSSARO report was submitted to the Minister of Natural
Resources on June 11, 2009. A notice for "information purposes
only" was posted to the Environmental Registry on August 11,
2009, under EBR Registry # 010-7360. MNR filed O. Reg. 332/09 to
amend O. Reg. 230/08 (Species at Risk in Ontario List) on September
10, 2009, and the new list was published in the Ontario
Gazette on September 26, 2009. These amendments will result in the addition of 10 species to
the SARO List, the removal of one species (the bigmouth buffalo
fish which is a large sucker), and changes to the classifications
of 13 other species on the list. On the positive side of the
ledger, the status of the hooded warbler and that of the southern
Ontario population of bald eagles were upgraded from
"threatened" to species of "special concern".
COSSARO also reviewed the status of 7 species whose classification
on the SARO List will not change, and made some technical changes
to the names of certain species. COSSARO is an independent committee mandated under ESA 2007 to
classify species according to risk-based criteria. When a report
submitted to the Minister identifies the need to change the SARO
List, O. Reg. 230/08 must be amended within three months. Once the
regulation is changed, the habitat of a species deemed threatened
or endangered is to be protected, and the ministry must prepare a
recovery strategy within one year for an endangered species and
within two years for a threatened species. The newly-listed species or those whose status has
deteriorated include: The proposed revisions to the Directors Technical Rules
were posted to the Environmental Registry for 30 days comment from
August 24 to September 23, 2009, under EBR Registry # 010-
7573. Ontario is revising the technical rules for preparing
source protection area assessment reports The province has proposed a mix of major, minor and
administrative revisions to the technical rules for drafting the
municipal drinking water source protection plans. As mandated under
the Clean Water Act, 2006, communities are being required
to systematically identify the risks to local drinking water
sources and develop strategies to reduce or eliminate such risks.
These assessment reports are to be submitted to the Ministry of
Environment with 12 months of the Minister's approval of the
terms of reference for a source protection area. However, source
protection committees, municipalities and stakeholders are having
trouble collecting all the information required to meet the current
assessment requirements within the regulatory deadlines. The latest revisions would provide a more flexible approach for
collecting additional data related to water budgets and groundwater
wells after the assessment report is submitted. This would allow
the ministry to review a draft report while the committee is still
filling in any remaining gaps. It should also expedite financial
assistance under the Ontario Drinking Water Stewardship Program to
address significant drinking water threats. In addition, committees
will be permitted to employ alternative methodologies for
identifying threats and assessing local conditions. There would
also be some leeway for dealing with problems that were not listed
in the original terms of reference but that were subsequently
identified. Amendments would also address threats related to the storage and
application of agricultural and non-agricultural source materials
and commercial fertilizer, and the use of land for livestock
grazing, pens or yards. Finally, the province is still wrestling
with how to handle the threat that road salts pose to drinking
water; they are asking for feedback on the proper way to prescreen
vulnerable areas and whether salt application rates should vary in
areas at low, medium or high risk. The Ministry of the Environment has adopted a package of
proposed housekeeping, streamlining and administrative amendments
to R.R.O. 1990 Regulation 347 (General – Waste
Management), under the Environmental Protection Act.
Certain names, definitions and references to other regulations and
legislation are simply updated. Other revisions "clarify
requirements in the regulation that have been identified over the
years." For example, the amendments "formalize an administrative
exemption [for field operations] that has been in effect for over
24 years." The wastes generated by prescribed "field
operations" and transferred directly to local waste transfer
facilities are exempt from subject waste requirements, including
generator registration and manifesting. The amendments also exempt
the local waste transfer facility – where field wastes
are received, bulked, temporarily stored and transferred
– from approvals requirements to receive the waste. Such
transfer stations would still have to meet (revised) structural,
operating and record keeping requirements in the regulation. The
exemption does not apply to waste management facilities, to
hazardous or liquid industrial wastes, or to wastes other than
those from field operations. Field operations include renovation, demolition and construction
operations; mining; "servicing, maintaining or monitoring
something" (presumably equipment of some kind); remote sites
operated by power, pipeline or communications networks;
environmental, geophysical or agricultural field testing; highway
operations; mobile health care providers; trade shows, exhibitions
or other such events; and spill clean-up or emergency response. Among the changes, it is no longer permissible to establish,
alter, enlarge or extend a "dump" anywhere in Ontario.
Wastes from municipal facilities or vehicles are subject to the
"industrial waste" provisions. Generators have four weeks
to confirm a waste transfer, and six weeks after that to report any
missing transfer. And a receiver has 24 hours to accept or refuse a
transfer of subject waste that arrives at the receiving
facility. Other "clarifications" cover the handling of mercury
wastes, record keeping by waste generators, the deadline for
generator registration, details of the manifest system, and certain
provisions related to woodwaste combustors used for residential
heating. The Ontario Ministry of the Environment has moved forward with
draft regulations to implement the province's new Toxics
Reduction Act, 2009. Regulated facilities in the manufacturing
and mineral processing sectors will have to undertake toxic
substance accounting on an annual basis, submit reports on their
toxic substance reduction plans on an annual basis, and update
these plans at least every five years. These requirements will be
rolled out in two phases, with the first phase covering the 47
priority substances and carcinogens listed in Table A of the draft
regulation. Note, two additional substances – antimony
and acetaldehyde – have been added to the list of
priority chemicals circulated last fall. The second phase will
cover the remaining substances on the National Pollutant Release
Inventory (NPRI) list. According to the proposed regulation, the first reports on toxic
substance reduction plans must be submitted by June 1, 2011
(covering the calendar year 2010), and the toxics reduction plans
are due by December 31, 2011. A summary of these plans must be made
available to the public. Facilities that use or create substances
listed in NPRI, but which are not listed in Table A, will have
until June 1, 2013, to provide their first report to the ministry
(covering the calendar year 2012). Facilities would then complete
their plans and provide a summary plan to the public and the
ministry by December 31, 2013. Another draft regulation is expected next spring. It would
define "substances of concern" for the purposes of the
Act and requirements for certified planners and administrative
penalties. Substances of concern are potentially toxic materials
not currently tracked through NPRI, and facilities using these
substances would be subject to a one-time reporting requirement.
The information collected will assist Ontario in determining if any
of these substances should be added to the list of prescribed
substances in Table A of the regulation or if any other action is
required. 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.
Edited by John Willms
Contents
Ontario's GHG reporting reg to support cap-and-trade
system
Quebec-Ontario craft joint environment and energy
initiatives
NRTEE is critical of Ottawa's greenhouse gas estimates and
climate change reporting methodology
O. Reg. 287/07 sets out the requirements for preparing the
terms of reference and the assessment report for a source
protection area: two of the three documents that comprise the
source protection planning process. Further details are contained
in the Director's Technical Rules and associated Tables of
Drinking Water Threats issued under section 107 of the Clean
Water Act, 2006. These documents came into effect in November
2008 and were updated with minor corrections in December 2008.
Ontario updates its general waste management regulation
The draft amendments were posted to the Environmental Registry
for public comment from June 18 to July 18, 2009. All comments
received were generally supportive and, as a result, no changes
were made to the final draft. The final decision was posted to the
Registry on September 18, 2009, under EBR Registry #010-6729. The
amending regulation was filed as O. Reg. 337/09.
Proposed toxics reduction regs posted for public comment
A discussion paper "Creating Ontario's Toxics
Reduction Strategy" was posted to the Environmental Registry
on August 27, 2008, under Registry # 010-4374. The draft regulation
was posted to the Registry for public comment from September 18 to
October 19, 2009, under EBR Registry #010-6729.
Environment, Energy & Resources Law Report - September/October 2009
Willms & Shier Environmental Lawyers LLP
Contributor
Willms & Shier Environmental Lawyers LLP www.willmsshier.com is Canada’s recognized leading environmental law firm, delivering a full range of environmental, Indigenous and energy law services. For 40 years, our clients have benefitted from our innovative, practical solutions and extensive knowledge of environmental, Indigenous, and energy and natural resource issues. With 19 highly specialized lawyers, we are the largest private sector environmental law practice in Canada. Seven of our lawyers are Environmental Law Specialists, certified by the Law Society of Ontario. Willms & Shier has offices in Toronto, Ottawa, Calgary and Yellowknife. Our lawyers are called to the Bar in Alberta, British Columbia, New Brunswick, Nunavut, the Northwest Territories, and Ontario.
Ontario has begun to lay the technical groundwork for joining a North American cap-and-trade network designed to control and reduce greenhouse gas (GHG) emissions.