IN THE COURTS
Proposed Extended Producer Responsibility Regulations for Managing End-of-Life Ozone-Depleting Substances (ODSs) and their Halocarbon Alternatives
Environment Canada will be drafting proposed regulations to manage the end-of-life of ozone-depleting substances and their halocarbon alternatives.
The proposed regulations would require importers, manufacturers, distributors and reclaimers of chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), hydrofluorocarbons (HFCs) and perfluorocarbons (PCFs) for use in the cooling sector to participate in an extended producer responsibility (EPR) program.
The proposed regulations would require EPR programs to accept refrigerants that contain CFCs, HCFCs, HFCs or PFCs from certain stationary and mobile refrigeration and air-conditioning equipment. Manufacturers, importers, distributors and reclaimers of virgin, used, reclaimed, recycled or recovered designated refrigerants would be required to prepare and implement a stewardship program designed to collect, transport and to dispose of designated refrigerants. As well, the regulations would include seller take-back provisions for bulk designated refrigerants.
While the regulations would not require Environment Canada to approve stewardship plans, plans would be required to be made available to Environment Canada and would be required to contain certain prescribed elements. Annual public reports would be required under the Regulations, and measurable and quantifiable targets would be required to be established at the program outset.
A consultation document is posted on the CEPA Environmental Registry. Consultation meetings have already been held and further meetings with stakeholders may be held in the future. Draft regulations will then be published for public comment in Part I of the Canada Gazette.
For more information see: http://www.ec.gc.ca/ceparegistry/documents/participation/ODS/default.cfm.
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Consultation Document Regarding Bisphenol A
The comment period on the Consultation Document released by Environment Canada expired on December 23, 2009. The Consultation Document proposed the development of regulations to establish maximum Bisphenol A concentrations in industrial effluents and to require the implementation of environmental management systems to ensure best management practices are adopted at regulated facilities where Bisphenol A is used. The proposed risk management actions are intended to achieve the lowest level of release of Bisphenol A from industrial facilities to water that is technically and economically feasible. The proposed Regulation would limit the release of Bisphenol A in industrial effluent to a maximum concentration of 1.75 ug/L.
Environment Canada received a number of submissions in response to the Consultation Document. No further consultation is anticipated until the publication of the proposed regulations in the Canada Gazette, Part I no later than October 17, 2010. Publication will be followed by a 60 day comment period. It is anticipated that the final regulations will be published in the Canada Gazette, Part II no later than April 2012.
For further information please see the Environment Canada website:
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Summary of the Assessment Report on Three Aluminum Salts - Aluminum Chloride, Aluminum Nitrate and Aluminum Sulphate
The three aluminum salts, aluminum chloride, aluminum nitrate and aluminum sulphate were included on the Priority Substances List under the Canadian Environmental Protection Act, 1999, in order to assess the potential environmental and human health risks posed by exposure to aluminum derived from these three salts in Canada.
In Canada municipal water treatment facilities are the major users of aluminum chloride and aluminum sulphate. Industrial water and wastewater treatment facilities, and the pulp and paper industry are also major users of these aluminum salts. Aluminum sulphate and aluminum chloride are also used as ingredients in drugs and cosmetics, such as antiperspirants and topical creams. Aluminum sulphate is permitted as a food additive in a limited number of products. Aluminum nitrate, used in far less quantities than sulphate and chloride salts, may be used in fertilizers, and as a chemical reagent in various industries.
Environment Canada concluded that the three aluminum salts, aluminum chloride, aluminum nitrate and aluminum sulphate are not entering the environment in a quantity or concentration or under long term conditions that have or may have an immediate or long term harmful effect on the environment or in its biological diversity, or that constitute or may constitute a danger to the environment on which life depends. It also concluded that aluminum chloride, aluminum nitrate and aluminum sulphate are not entering the environment in a quantity or concentration or under conditions that constitute or may constitute a danger in Canada to human life or health.
Accordingly, it has been found that the three aluminum salts do not meet any of the criteria set out in the Canadian Environmental Protection Act for designation as toxic substances.
For more information see: http://www.gazette.gc.ca/rp-pr/p1/2010/2010-01-23/html/index-eng.html.
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The Government of Alberta has released the Water for Life Action Plan.
The Action Plan supports the goals and directions in Alberta’s renewed Water for Life Strategy. It will focus on two key themes: safeguarding water sources and accelerating Alberta’s commitment to action in the following areas:
- Address aquatic ecosystem degradation;
- Integrate water and land management;
- Create, enhance and use innovative tools and best practices;
- Clarify roles, responsibilities and accountabilities;
- Enhance data collection, analysis and reporting; and
- Expand public awareness programs to build shared commitment.
For more information see: www.waterforlife.alberta.ca.
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B.C. Introduces New Recycling Regulations
British Columbia has added lead-acid batteries and antifreeze to its recycling regulations. Producers will be required to develop and submit recycling programs for approval of these products by July 2011. Manufacturers will also be required to add a bittering agent to ethylene glycol antifreeze under the antifreeze regulation to protect pets and children from the risk of poisoning. Antifreeze containers will also be included in the recycling regulations.
For more information see: http://www.env.gov.bc.ca/epd/recycling/resources/new_products/index.htm.
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B.C. Working with California to Reduce Vehicle Emissions
British Columbia and the California Air Resources Board have signed a Memorandum of Understanding to pave the way for stringent greenhouse gas emissions standards for new light-duty vehicles.
The Memorandum of Understanding commits the B.C. Ministry of Environment and the California Air Resources Board to move forward in partnership on the implementation of greenhouse gas emissions standards for new cars, SUVs, and light-duty trucks.
The vehicle emission standards mirroring California’s are projected to reduce greenhouse gas emissions from light-duty vehicles in B.C. by 30% in 2016, relative to current vehicles.
For more information, see: http://www.env.gov.bc.ca/pac/climate-action/docs/2009/mou_BC-CARB_VehicleEmissions.pdf.
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Soil, Groundwater and Sediment Quality Criteria in Ontario: A History of their Development from the 1970s to December 2009
A report released by the Environmental Commissioner of Ontario records the history of the development of Soil, Groundwater and Sediment Standards for the Province of Ontario.
These Standards are now used by owners, industry, developers and government to determine if a site is contaminated, what activities are permissible for the site, and if a site should be remediated, the Standard to which that remediation should be conducted.
The report provides an overview of the decisions and legislation that have guided the development of soil and groundwater quality criteria from the early 1970s to December 2009.
For more information see: www.eco.on.ca/eng.
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Regulation Proposal Notice: Regulatory Components to Support the Development and Implementation of Source Protection Plans under the Clean Water Act, 2006
This notice provides a summary of a draft regulation under the Clean Water Act which sets out the minimum requirements for the content and preparation of Source Protection Plans. The proposed regulation is intended to build on those requirements and support Source Protection Committees in the development of their Source Protection Plans.
The draft regulation proposes a number of objectives that must be included in each Source Protection Plan. It would require Plans to protect existing and future drinking water sources, and ensure that activities that are or would be significant drinking water threats either cease to be or never become a significant drinking water threat. It also sets out the types of policies that a Source Protection Committee would be permitted to include in a Source Protection Plan in addition to those specified in the Act.
The draft regulation proposes that a summary of all consultations undertaken for the development of a Terms of Reference, the Assessment Report and the Source Protection Plan be included in the Plan. It proposes requirements with respect to consultation during the preparation of Source Protection Plans and consultation on a draft Source Protection Plan once one is completed by the Source Protection Committee. It also proposes that an explanatory document will be required and submitted with the Source Protection Plan that would contain the rationale behind the policies in the Plan, a summary of comments received during consultations, how they were incorporated into the Plan, and an explanation of how Climate Change considerations were taken into account in the development of the policies in the plan.
The Act provides municipalities with authority to regulate activities that are significant drinking water threats, where such activities are located in in-take protection zones or well-head protection areas. It may prohibit a person from engaging in an activity which is a threat in a specified area or regulate the activity by requiring persons to have a risk management plan for the activity. A risk management plan may contain a number of requirements, including remediation of adverse effects and provision of financial assurance.
To review a summary of the proposal and for a link to the draft regulation see: http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA4NjQ1&statusId=MTYzMTY1&language=en
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Policy Proposal Notice: Ministry of Energy and Infrastructure Statement of Environmental Values
The Ministry of Energy and Infrastructure (MEI) is seeking comment on a new draft Statement of Environmental Values for the Ministry.
The aspects of the draft of the draft Statement of Environmental Values include the following:
- A commitment to consider the effects of MEI’s decisions on current and future generations, consistent with sustainable development principles;
- A list of specific environmental factors that MEI may consider in its decision-making, where appropriate (e.g. considering the differing environmental impacts of energy sources and technologies; considering options to reduce energy consumption and promote energy conservation and efficiency; incorporating environmental considerations into infrastructure funding and policy);
- A commitment to encourage energy conservation and resources conservation in MEI’s own operations through employee behaviour, and (through the Ontario Realty Corporation) to work to improve the environmental performance of the government’s real estate portfolio.
For more information see: http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTA4NDkz&statusId=MTYyOTYz&language=en.
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Proposed Legislative Framework for Modernizing Environmental Approvals
The Government of Ontario intends to introduce legislation that, if passed, would enable the implementation of a modernized environmental approval system in Ontario. The Ministry of the Environment expects to begin introducing changes to the environmental approvals system by September 2012.
The discussion document has now been posted on the Environmental Registry. It identifies the challenges facing the current environmental approvals process in Ontario and outlines a possible framework for modernization.
Key objectives of the new approvals process are:
- A simplified process for lower-risk activities;
- A focus of resources on the facilities that pose a potentially higher-risk to the environment and human health;
- Provision of on-line service delivery; and
- Improvement of public transparency.
Other notable aspects of the proposed approvals process include provisions for single site, multi-media permits or single, multi-site approvals.
The proposal was posted on March 2, 2010, for a 30 day public review and comment period.
For more information see: EBR Registry No. 010-9143 at www.ebr.gov.on.ca.
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Proposed amendments relating to fee payable for municipal recovery and reclaiming of residual materials
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 was tabled before the Québec National Assembly on March 18, 2010. Besides proposing a revised definition of what constitutes reclamation and what residual materials treatment operations will be considered as reclamation for the purposes of residual materials management in Québec, the Bill further proposes to modify the current compensation regime for residual materials recovery and reclamation services provided by municipalities. Designated businesses are currently required to compensate 50% of the costs of such services. The Bill proposes to define the calculation method as well as the performance and efficiency criteria to be used to determine the annual compensation owed. The Bill provides that the amount of the compensation determined by Recyc-Québec will be divided among the designated materials or classes of materials according to the share alloted to each by the Government. The percentage of compensation will increase gradually until, by 20105, full compensation of admissible costs is reached. In the Minister's view, these new measures should encourage better eco-designing as well as a reduction in packaging while increasing the percentage of residual materials recovery in the province. The Bill is subject to a 60 day comment period and can be reviewed at:
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IN THE COURTS
A Supreme Court of Canada Decision on Project Scoping Under the Canadian Environmental Assessment Act (CEAA)
The Supreme Court of Canada has issued a landmark decision in Mining Watch Canada v. Red Chris Development Company Ltd. The decision interprets key provisions of CEAA which determine the environmental assessment track for projects and the scope of their environmental assessment.
Red Chris triggered the federal environmental assessment process by submitting applications to the Department of Fisheries and Oceans for dams required to create a tailings impoundment. The project was described as an “open pit mine with associated infrastructure including tailings impoundment area, access roads, water intake, transmission lines and accessory buildings (e.g. maintenance, campsite)”. A comprehensive study under CEAA was determined to be required by the Department of Fisheries and Oceans (DFO) because the project’s proposed ore production was great enough that it fell within the provisions of the Comprehensive Study List Regulations.
Subsequently DFO advised the Canadian Environmental Assessment Agency that it had scoped the project to exclude the mine and the mill, and only include the tailings impoundment area, water diversion systems, ancillary facilities and the explosives storage and/or manufacturing facility. As a result, DFO determined that as the mine and mill were no longer included in the project, a comprehensive study was not necessary and the assessment could proceed by way of screening only.
Mining Watch took the position that a comprehensive study was required. The issue before the Supreme Court of Canada was whether the responsible authorities (RA) under CEAA had the discretion to determine whether an environmental assessment proceeds by way of a screening or comprehensive study. The court ruled that the RA does not have that authority. It held that whether a comprehensive study is required depends on the project as described by the proponent. If the project as described by the proponent is one which is classified by the Minister as requiring a comprehensive study by means of the prescribed Comprehensive Study List (CSL), then it must proceed on that basis.
However, the court held that once a project is tracked for comprehensive study, the RA does have the discretion to determine the scope of the project for the purpose of the assessment. Nonetheless, the court is clear that there are limits to the discretion of the RA with respect to the scoping of a project for the environmental assessment:
“The minimum scope is the project as proposed by the proponent, and the RA or Minister has the discretion to enlarge the scope when required by the facts and circumstances of the project. The RA or Minister is also granted further discretion … to combine related proposed projects into a single project for the purposes of assessment.”
Indeed, the court notes that this discretion may be used in circumstances where a proponent engages in “project-splitting” by only representing part of a project, or proposing several parts of a project as independent projects, in order to circumvent environmental assessment obligations. “The RA or the Minister may enlarge the scope of the project in appropriate circumstances”; conversely, however, they can not reduce the scope.
The court concludes by granting the relief requested by Mining Watch: a declaration that the RAs erred in failing to conduct a comprehensive study. However, the court did not require a comprehensive study to be done in this case. It noted that Red Chris had not done anything wrong and would be prejudiced by further delay and costs if it had to re-do the environmental assessment. It also noted the provincial environmental assessment process had been completed, with opportunities for public comment, and no substantive error alleged. The court also noted that Mining Watch had brought this application as a test case, with “no proprietary or pecuniary interest in the outcome of the proceedings”, and had not participated in the environmental assessment conducted by British Columbia. Accordingly, despite the project not having been tracked correctly for federal environmental assessment purposes, compliance with the federal comprehensive study track was not required by the court in this case.
The court’s decision highlights the importance of carefully crafted project descriptions and provides important definition to the powers of Responsible Authorities with respect to project scoping under CEAA. Persons engaged in the CEAA process, or contemplating initiating or participating in CEAA proceedings, must take careful note of the Mining Watch v. Red Chris decision.
In order to review the decision please see:
Patricia Leeson, Douglas Clarke and Mark Madras all spoke at a Gowlings Energy Series Breakfast Seminar in Calgary on March 11, 2010 on the subject of the climate change strategies of Alberta, Quebec and Ontario.
Gowlings will hold its Environmental Law for Business - 2010 seminar on April 29, 2010. This complimentary full day seminar will be presented by members of the Gowlings’ Environmental Law National Practice Group along with guest speakers. As in previous years, there will be a variety of topics. This year topics include: A Regulatory Update on The Green Energy Act; Renewable Energy Opportunities; Canadian Stewardship Programs; Update on Contaminated Sites Legislation; Corporate Environmental Reporting Obligations; Climate Law – A Global Regulatory Update; and The Practical Consequences of Climate Law Today. For further information or to register please phone or e-mail Nory Paredes at (416) 862-5746 or firstname.lastname@example.org.
Paul Granda of our Montreal Office will be speaking on the rights and obligations of an owner or lessee of contaminated land at the Insight Conference “Conférence sur les terrains contaminés" in Montréal on May 31st and June 1st, 2010.
Patricia Leeson and Robert Savage (Climate Change Secretariat Alberta) are presenting in Calgary at Canadian Institute Environmental Law and Regulation in Alberta, April 27 and 28, 2010.
On April 22, 2010, Ian Richler will be a panelist at a seminar on "The Value of Water: Emerging Issues" being held jointly by the Canadian Urban Institute, Water Canada Magazine, and the University of Toronto's Centre for Environment.