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September 23, 2010 - Volume 7, Number 8

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What's Happening


Notice with respect to reporting of greenhouse gases for 2010

On August 14, 2010, pursuant to subsection 46(1) of the Canadian Environmental Protection Act, 1999, notice was published in the Canada Gazette requiring all persons who operate a facility that emits 50,000 tonnes of carbon dioxide equivalent or more to report their 2010 emissions to Environment Canada no later than June 1, 2011. Similar to the NPRI, these reports are collected through Environment Canada's Single Window Reporting system, which was launched in March 2010.

For further information, please see the Notice as published in the Canada Gazette.

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Proposed Regulations Establishing Timelines for Comprehensive Studies under the Canadian Environmental Assessment Act

Also on August 14, 2010, notice was published in Part I of the Canada Gazette of the proposed Establishing Timelines for Comprehensive Studies Regulations (“the proposed Regulations”) under the Canadian Environmental Assessment Act (“the Act”).

The proposed Regulations are intended to complement the recent amendments to the Canadian Environmental Assessment Act (as previously reported in the August 25, 2010 edition of the Environment@Gowlings, available here) that now require that the Canadian Environmental Assessment Agency (“the Agency”) assume responsibility for the conduct of all comprehensive studies, except for those projects regulated by the National Energy Board and the Canadian Nuclear Safety Commission. 

The proposed Regulations will set mandatory timelines on the Agency for its role in conducting comprehensive studies, including an initial 90-day period in order to determine whether a comprehensive study should be started and a 365-day period within which to complete a comprehensive study once it has been determined that a comprehensive study should be undertaken.  Significantly, the 365-day period can be suspended either upon the request for the project proponent, or where the proponent is required to collect any information necessary to complete the requirements of the terms of the reference for the comprehensive study.   The regulations also establish a mandatory annual reporting requirement for the Agency whereby the Agency would be required to publish a report on its performance vis-à-vis the proposed Regulations on its website.

The 30-day comment period for the proposed Regulations expired on September 13, 2010.  The Canada Gazette Notice and the proposed Regulations can be viewed in their entirety here.

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Establishment of a Board of Review under the Canadian Environmental Protection Act for Decamethylcyclopentasiloxane (D5)

On August 21, 2010 the federal government announced the establishment of the first ever Board of Review pursuant to section 333(1) of the Canadian Environmental Protection Act, 1999 to inquire into the nature and extent of the dangers posed by the substance Decamethylcyclopentasiloxane (also known as D5)

Previously, on May 16, 2009, the Minister of the Environment and the Minister of Health had published a notice in the Canada Gazette (available here) of the proposed Order to add D5 to schedule 1 of CEPA following the conclusion of the screening assessment that determined that D5 was “entering the environment in a quantity or concentration or under conditions that have or may have an immediate or long-term harmful effect on the environment or its biological diversity”.  However, new scientific information on D5 has since been made available that has led the Minister of the Environment to believe that ”a further inquiry into the nature and extent of the danger posed by this substance is warranted, considering the advent of information and data not previously examined.”

The Board of Review, consisting of Dr. John Giesy (Chair), Dr. Keith Solomon and Dr. Sam Kacew will therefore conduct a scientific review of studies and reports on D5 in accordance with the terms of reference set out in the August 21st Notice.  After the extent of the danger posed by the substance is assessed, the Board of Review will submit a report, together with its recommendations and the evidence that was presented to it, to the Minister of the Environment.

To view the Notice in its entirety, including the Board of Reviews Terms of Reference, click here.  The Government has also established a website for the D5 Board of Review, containing key documents and background information on the Board members, which can be accessed here.

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Government of Canada Releases Final Regulations for Renewable Fuel Content in Gasoline

On September 1, 2010, the Government of Canada published the final version of the Renewable Fuels Regulations under the Canadian Environmental Protection Act, 1999.  The Regulations require fuel producers and importers to have an average renewable fuel content of at least five percent (5%) in gasoline (based on the volume of gasoline produced and imported) starting December 15th, 2010.   The provisions requiring an average of two percent (2%) renewable fuel content in diesel fuel and heating oil (based on annual volumes) will be brought into force once the “technical feasibility of renewable diesel fuel use in Canada has been demonstrated”.

The Regulations, in combination with the proposed Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations published in April of this year, fulfill the federal government’s commitments under the Renewable Fuels Strategy of reducing GHG emissions from liquid petroleum fuels and creating a demand for renewable fuels in Canada.  The federal government estimates that the Renewable Fuel Regulations will result in an incremental reduction of GHG emissions from the transportation sector of about 1megatonne of carbon dioxide equivalent per year over and above the reductions attributable to existing provincial requirements already in place. 

The proposed Draft regulations were previously published in Part I of the April 10, 2010 Canada Gazette for a 60-day public comment period.  The final version of the Regulations can be viewed here.

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Senate Committee on Energy, the Environment and Natural Resources releases report on Canada’s Offshore Drilling Operations

On August 18, 2010, following 6-weeks of fact-finding hearings to determine the status of Canada’s offshore drilling operations, the Standing Senate Committee on Energy, the Environment and Natural Resources released its report entitled Facts do not Justify Banning Canada’s Current Offshore Drilling Operations: A Senate Review in the Wake if BP’s Deepwater Horizon Disaster.

As the name suggests, the report is as a direct consequence of concerns expressed by Canadians following the BP incident earlier in the year, which saw millions of crude oil being spewed into the Gulf of Mexico in the United States worst environmental disaster on record.  The goal was to review Canada’s federal and provincial regulatory schemes which govern offshore oil and gas exploration and establish whether there was an imminent risk to Canada’s environment along the three coast (Arctic, Atlantic and Pacific).

After 9 hearings and hearing from 26 witnesses, again, as the name of the report suggests, the committee found that both the provincial and federal regimes work well and that the absence of evidence to the contrary does not justify a temporary or permanent ban or moratorium on current Canadian offshore operations.  Nonetheless, the report cautioned that any future offshore drilling operations will need to be carefully regulated and controlled within the legislative regimes currently in place, and the Committee made 6 recommendations as to what should be considered when approving future offshore drilling operations in Canadian waters, which included a recommendation that there be greater collaboration between all parties responsible for responding to oil spills in developing, preparing and practicing in advance of an event, as well as a recommendation that there be a comprehensive review of the issue of liability, including whether thresholds should be adjusted to reflect “current economic realities”.

The 77-page report  can be viewed in its entirety here.

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Proposed Rules restricting Off-shore Wind Turbine Developments

The Ontario Government is proposing significant rules around where off-shore wind turbines can be located and what technical requirements will need to be fulfilled before any turbines can be built.

On June 25, 2010, the Ministry of the Environment (“MOE”) posted a policy proposal on the Environmental Registry (EBR. Registry No. 011-0089) that, in addition to proposing a one kilometre development exclusion zone around drinking water intakes, proposed a five (5) kilometre shoreline exclusion zone for the development of off-shore wind turbine facilities in the Great Lakes and other inland lakes, as well as from the shorelines of any major islands.  This minimum shoreline exclusion distance is said to be comparable to shoreline exclusion proposals from many U.S. States that also border the Great Lakes, but is ultimately meant to ensure that noise at onshore receptors never exceeds 40 decibels (dBA) or are otherwise within “acceptable levels”. However, site-specific noise studies, along with cultural heritage and ecological studies, will also be required before any potential off-shore wind facility will receive the required Renewable Energy Approval (“REA”) under the Green Energy Act, 2009.  The comment period for this policy proposal ended on August 24, 2010 and it is anticipated that future EBR Registry postings will confirm the requirements for off-shore wind development projects as proposed amendments to O. Reg. 359/09 (Renewable Energy Approval Regulation) and the REA process.

More recently, on August 18, 2010, the Ministry of Natural Resources (“MNR”) posted its own policy proposal on the Environmental Registry (EBR. Registry No. 011-0907) aimed at determining potential offshore areas and criteria that should be taken into consideration which may “constrain future development” of off-shore wind facilities on Crown Lands.  Notably, the beds of most inland lakes in Ontario, including the Canadian portion of the Great Lakes, are provincial lands administered by the MNR through the Public Lands Act.  Use or occupation of the Crown lakebed, including for the development of off-shore wind facilities, requires the approval of MNR through the issuance of appropriate land tenure documents.  MNR is now seeking public input into where, when and how it should make these lakebeds available for off-shore wind development projects.

Areas proposed to be constrained from future off-shore wind turbine development include:

  • Navigational lanes
  • Areas of core commercial fishing activity
  • Sensitive environmental and ecological areas and features
  • Areas subject to important recreational activities
  • Areas containing Cultural heritage features
  • Areas of natural gas activity
  • Areas of inland lakes not subject to the proposed five kilometre exclusion zone
  • Other inland waterbodies (e.g. Lake Simcoe, Lake Nipissing, Lake Nipigon, Lake of the Woods, etc)
  • Other Great Lake specific considerations

As the identification of areas constrained from development, and the application of the MOE’s shoreline exclusion zone policy proposal, may be applied to existing Crown land offshore applications, the MNR is going to defer the processing of any existing applications and will not be accepting any new applications until decisions on these policy proposals have been made. 

Public comments on the MNR policy proposal are still being sought, and will be received until October 4th, 2010, here.

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Amendments to Ontario Regulation 287/07 under the Clean Water Act in force

On July 1, 2010 certain amendments to O. Reg. 287/07 (the General Regulation under the Clean Water Act, 2006) came into force setting out content and consultation requirements for the development of drinking water source protection plans, and including provisions that enable and govern the implementation of Part IV of the Act (“Regulation of Drinking Water Threats”) to address significant drinking water threats in wellhead protection areas and intake protection zones.

O. Reg. 287/07 also now specifies certain “prescribed instruments” that are required to conform to significant threat policies in addition to being required to have regard to other policies contained in source protection plans for areas where the prescribed instruments are being issued.  In particular, the instruments include those issued under the Aggregate Resources Act, the Environmental Protection Act, Lakes and Rovers Improvement Act, Nutrient Management Act, 2002, Ontario Water Resources Act, Pesticides Act, and the Safe Drinking Water Act, 2002.  Prescribed instruments under the Environmental Protection Act include Certificates of Approval issued under section 39 (for the use, operation, establishment, alteration, enlargement or extension of waste disposal sites or waste management systems) while prescribed instruments under the Ontario Water Resources Act include Permits to Take Water issued under section 34 of the Act.

For more information on the amendments, including a summary of the comments received on the draft regulation when posted back in January, see the MOE’s Regulation Decision Notice which can be accessed here.  O. Reg. 287/07, as amended, can be viewed here.

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New Minister of Sustainable Development, Environment and Parks

On August 11, 2010 Pierre Arcand replaced Line Beauchamp as Québec's new Minister of Sustainable Development, Environment and Parks (Ministre du Développement Durable, de l'Environnement et des Parcs). Prior to holding this new position within the Charest government, Mr. Arcand, MNA for the Mont-Royal riding, was Minister of International Relations, Minister responsible for the Francophonie and  a Member of the Comité Ministériel de la Prospérité Economique et du Développement Durable.

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Significant investments through the ClimatSol Program

The Québec Minister of Sustainable Development, Environment and Parks, and the Minister of Transport and Minister responsible for the National Capital region, announced investments through the ClimatSol Program totalling $15M to revitalize Brownfields sites located in the Québec City area. Initially, $5M has been allocated to the remediation of 25 contaminated sites. An additional sum of $10M will be used to remediate two major sites in Pointe-aux-Lièvres and d'Estimauville where a vast redevelopment project is anticipated.

The ClimatSol Program was created to help municipalities promote Brownfield rehabilitation and to encourage the inclusion in redevelopment projects of elements that have a real and measurable impact towards reducing or avoiding greenhouse gas emissions, increasing energy efficiencies, creating green spaces or integrating green technologies.

Please click here for further information.

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BAPE Hearings on Shale Gas Development

Faced with increasing public concerns and pressures over shale gas exploration and production, the Québec Government announced on August 29, 2010 a series of government actions that will be implemented to ensure the "sustainable development of the shale gas industry".  The first of these actions has been to require that the Bureau des Audiences Publiques sur L'environnement (BAPE) consult the public and stakeholders on the manner in which shale gas exploration and development activities will be controlled. The BAPE commission will examine the concerns to ensure that the information necessary for an in-depth assessment of the situation is compiled, shared and discussed appropriately. The BAPE's report is expected to be tabled next February  and will contain its recommendations on how to oversee the shale gas industry to ensure the protection of the environment. 

A second action will be to pursue the drafting of the proposed Hydrocarbons Act with the input and cooperation of municipalities, the public, industry, agriculture and environmental groups. Three advisory committees have been established: a hydrocarbon liaison committee, an environmental advisory committee and an advisory committee of industry representatives. The first of these committees is made up of elected officials from the three administrative regions located between Montréal and Québec City where natural gas potential is significant, representatives of the Union des producteurs agricoles and of municipal and government agencies. The committees will examine the environmental, social and economic challenges of hydrocarbon exploration and development in the Province with the view of recommending provisions that should be included in the above proposed legislation. According to the Ministers, it is hoped that this process will enable Québec to "introduce methods to develop its hydrocarbon potential that are in compliance with the highest environmental and social standards".

The Government will also set up a designated website to provide information on shale gas to the public . A comprehensive information guide for municipalities as well as a document detailing the government's courses of action will also be published.  In addition there will be a series of meetings scheduled between the Minister, experts from the Ministry of Natural Resources and Wildlife, the Ministry of Sustainable Development, Environment and Parks, the Ministère de la Sécurité Publique, and local elected officials and citizens to present this information. The third action will be for the Government to sign a memorandum of understanding with the shale gas industry that will detail the best practices the industry will be required to implement.  This is expected to also involve a social agreement between industry, government and the public.

Please click here for further information.

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What's Happening

Mark Madras will be speaking at the OH&S Compliance Summit on Due Diligence in Theory and Practice on October 4, 2010. Mark will be on a panel addressing "Latest Trends and Hot Topics".  Mark will also be speaking at the Canadian Institute Environmental Law and Regulation conference on October 28, 2010, on "Meeting Your Requirements in the New Carbon Markets".

Best Lawyers® has named Gowlings Environmental Law Group as Top-Listed Toronto and Top-Listed in Ontario with David Estrin, Harry Dahme and Mark Madras being listed among the top environmental lawyers in Ontario. Paul Granda of Gowlings’ Montreal Office was listed as one of the best environmental lawyers in Quebec. Alan Blair of Gowlings’ Vancouver Office was listed among the best environmental lawyers in British Columbia.  Best Lawyers® a peer-review publication in the legal profession. The listings are based on exhaustive peer-review surveys in which leading lawyers confidentially evaluate their professional peers.

Harry Dahme is a member of the Waters’ Next Nominating Committee. Nominations are now open for leaders in Canada in the area of water. Nominations are being accepted for four categories: People; Innovations; Projects, and; Businesses.  Please click here for further information.

On October 14, 2010 Harry Dahme will be presenting on Environmental Investigations and Enforcement at Understanding Environmental Regulations organized Educational Programs and Innovations Center (EPIC).

Paul Granda of our Montréal office will be part of a panel of experts who will be discussing the topic of "Urban Intensification and Bringing Brownfield Sites Into Mainstream Development" at the upcoming Canadian Brownfields 2010 Conference in Toronto November 1-3, 2010. This workshop will be held on November 1st. Paul has also been retained by Réseau des ingénieurs du Québec to give full-day training sessions on environmental laws to engineers and forestry engineers on November 11-12 and November 30, 2010 respectively.

Harry Dahme (Toronto)

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