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April 15, 2011 - Volume 8, Number 3

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Federal News

Provincial News

Alberta

British Columbia

Ontario

Québec

What's New


Federal News

Addition of 40 Petroleum and Refinery Gases to the List of Toxic Substances

On January 15, 2011, the Ministers of Environment and Health published notice of their intention to add forty petroleum and refinery gases, which are currently specified on the Domestic Substances List, to the List of Toxic Substances (Schedule 1 of CEPA, 1999).  These gases are produced during petroleum refining, upgrading or natural gas processing, and vary in composition depending upon the source of crude oil, bitumen or natural gas, and processing.  They are considered “site restricted” substances, in that they are typically not transported offsite, but are instead consumed as fuels on-site, or used as feedstocks within a facility.

Environment Canada noted that some releases of petroleum and refinery gases into the atmosphere may occur, contributing to ambient background levels of 1,3-butadiene.  These gases are considered to be persistent in the atmosphere, but not bioaccumulative or inherently toxic to non-human organisms.  Carcinogenicity was considered to be a critical effect for human health risk characterization, in particular in relation to 1,3-butadiene. 

The Screening Assessment and Risk Management scope document for these substances are available at
www.chemicalsubstances.gc.ca.

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Screening Assessment of Batch 12 Substances

Draft screening assessments have been published for Batch 12 substances pursuant to the Chemical Management Plan.  As a result of these screening assessments, Environment Canada proposes to add one of the Batch 12 substances, Trisiloxane, cotamethyl-, CAS No. 107-51-7 (“Trisiloxane”), to the List of Toxic Substances, under CEPA, 1999.

Trisiloxane is not manufactured in Canada, but was imported in 2005 and 2006.  Trisiloxane is used as an ingredient in industrial, medical and consumer products including cleaning and degreasing products, personal care products and cosmetics.  The draft screening assessment concluded that Trisiloxane met the ecological categorization criteria for persistence, bioaccumulation potential and toxicity to non-human organisms, but was not considered to constitute a danger to human life or health.  The Screening Assessment and the Risk Management scope document for Trisiloxane are available at http://www.chemicalsubstances.gc.ca/.

All of the remaining Batch 12 substances failed to meet the criteria for toxicity pursuant to CEPA, 1999, and no further action is proposed by Environment Canada.   These substances include:  carbon black, CAS No. 1333-86-4;  Guanidine, N,N’-diphenyl-, CAS No. 102-06-7; Cristobalite, CAS No. 14464-46-1 and Quartz (SiO2) CAS No. 14808-60-7; Trisiloxane, 1,1,1,5,5,5,-hexamethyl-3,3-bis[(trimethylsilyl)oxy]-, CAS No. 3555-47-3;  B-Alanine, N-[4-[(2-bromo-6-chloro-4-nitrophenyl)azo]phenyl]-N-(3-methoxy-3-oxopropyl)-,methyl ester; CAS No. 59709-38-5, Silanamine, 1,1,1-trimethyl-N-(trimethylsilyl)-,reaction products with ammonia, octamethylcyclotetrasiloxane and silica, CAS No. 68937-51-9; and Pyridine, alkyl derivs, CAS No. 68391-11-7; 1H-Indene, 2,3-dihydro-1,1,3,3,5-pentamethyl-4,6,dinitro-, CAS No. 116-66-5; Ethanamine, N-ethyl-N-hydroxy-, reaction products with hexamethylcyclotrisiloxane, silica and 1,1,1-trimethyl-N-(Trimethylsilyl)silanamine, CAS No. 68583-58-4; and Pyridine, 2-[3-(3-chlorophenyl)propyl]-, CAS No. 101200-53-7.

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Pollution Prevention Plans Required for Siloxane D4

Environment Canada has published notice that it intends to require the implementation of Pollution Prevention Plans in relation to Cyclotetrasiloxane, octamethyl-, which is a substance included on the List of Toxic Substances (Schedule 1 to CEPA, 1999). 

The P2 Plans will be required of persons owning or operating an industrial facility that, in 2011, manufactures or uses D4, or a mixture containing D4, in a quantity greater than or equal to 100 kg per calendar year, and as a result of the manufacturing or use, releases and effluent containing D4 at the facility’s final discharge point.  The Notice does not apply to persons owning or operating industrial facilities where D4 is used in a concentration of less than 1%, or where D4 is used in any solid material such as rubber, wiring insulation and seals, where the is no effluent containing D4 released at the final point of discharge. 

A specific risk management objective of 2.3 ug/L applies to effluent released to surface water or to a wastewater system without treatment, and an objective of 17.3 ug/L applies to effluent released into a wastewater system with treatment. Dilution may not be used to reach the specified concentration, and P2 Plans are to encourage the lowest level of release of D4 that is technically and economically feasible.  Priority must be given to approaches that “avoid or minimize the creation of pollutants or waste”, and alternatives to D4 should be considered in P2 Plans, provided those alternatives do not degrade into D4, or cause environmental effects similar to D4.  The Notice sets out requirements for sampling and analysis, monitoring and record retention, and requires the filing of Interim Progress Reports until implementation has been completed.

P2 Plans must be prepared, and implementation must be started, within 12 months of the publication of the Final Notice.  Implementation must be complete no later than 60 months from the date of publication of the Final Notice.  For persons who become subject to the Notice at a date later than the date of publication, the plan must be implemented within 24 months of the person becoming subject to the Final Notice.

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Significant New Activity Notices

On January 8, 2011, Environment Canada published a proposal to add Significant New Activity (“SNAc”) flags to three substances that are currently on the Domestic Substances List.  These substances are: 1H-Indene, 2, 3-dihydro-1,1,3,3,5-pentamethyl-4,6-dinitro-, CAS No. 116-66-5, Ethanamine, N-ethyl-N-hydroxy-, reaction products with hexamethylcyclotrisiloxane, silica and 1,1,1-trimethyl-N-(trimethylsilyl)silanamine, CAS No. 68583-58-4 and Pyridine, 2-[3-(3-chlorophenyl) propyl]-, CAS No. 101200-53-7.  The proposal was open for comment from January 8 – March 8, 2011.  The SNAc flag would, once added to the DSL, prohibit any person from using, manufacturing or importing more than 100 kg of the substance unless specified information is first provided, including the information set out in Schedule 6 to the New Substance Notification Regulations (Chemicals and Polymers) (“NSN Regulations”), and an assessment period of 90 days has expired.

On January 15, 2011, Environment Canada published a proposal to add at SNAc flag to the Domestic Substances List in relation to Nickel, bis[2,3-bis(hydroxyimino)-N-(2-methoxyphenyl)butanamidato].  Specified information, including but not limited to information from Schedules 4-6 of the NSN Regulations, must be provided to Environment Canada 90 days prior to the use, import or manufacture of 100 kgs of the substance. 

On January 22, 2011, Environment Canada published a proposal to add SNAc flags to the Domestic Substances List in relation to five additional substances:  Thiourea (CAS No. 62-56-6);  Oxirane, chloromethyl- (CAS No. 106-89-8);  Phenol, 2,4,6-tris(1,1-dimethylethyl)-, CAS No. 732-26-3);  C.I. Pigment Yellow 34 (CAS No. 1344-37-2); and C.I. Pigment Red 104 (CAS No. 12656-85-8).  The proposal was open for comment from January 22 - March 22, 2011.   Specified information must be submitted 180 days prior to the use, import or manufacture of these substances.  Specific uses of the substances are exempt. 

On January 12, 2011, Environment Canada amended the Domestic Substances List to add a SNAc flag to the substance Resin acids and Rosin acids, fumarated, barium salts, CAS No. 124751-15-1.  The SNAc flag requires submission of the information set out in Schedule 6, 90 days prior to the threshold of 100 kg being reached.

Further details regarding these substances are available at http://www.chemicalsubstances.gc.ca/.

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Amendments to Rules for Boards of Review

On January 11, 2011, Environment Canada published notice that the Rules of Procedure for Boards of Review pursuant to CEPA,1999 had been amended.  The amendments permit the Board to require the Minister or a party to file a written summary, of facts and evidence to be presented, the names of witnesses to be called and a summary of their evidence, seven days prior to the hearing.

The Board’s hearings are to be conducted in public, and information provided to the Board for the purpose of an inquiry shall be placed on the public record, unless such information or evidence is confidential pursuant to specified provisions of the Privacy Act.   Amendments were also made addressing the awarding of costs.

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CEPA Board of Review

CEPA Board of Review

Gowlings will be appearing on behalf of the Silicones, Environmental Health and Safety Council of North America, and the Canadian Cosmetic, Toiletry and Fragrance Association at the CEPA Board of Review on D5 Siloxane.

For more information see:
http://canadagazette.gc.ca/rp-pr/p2/2011/2011-02-02/html/sor-dors1-eng.html

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Time Extensions re: Dental Amalgam Waste

On Feb. 5, 2011, notice was given that three specific dental practices had each been granted extensions of 168 days, until April 30, 2011, in order to implement pollution prevention plans related to the Notice Requiring the Preparation and Implementation of Pollution Prevention Plans in Respect of Mercury Releases from Dental Amalgam Waste.

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Regulations Amending the Off-Road Compression-Ignition Engine Emission Regulations

The Federal Government is proposing regulations amending the Off-Road Compression-Ignition Engine Emission Regulations to further reduce emissions from off-road diesel engines in Canada by establishing more stringent Canadian off-road emission standards and test procedures.

The proposed amendments would apply to off-road diesel engines used in machines such as tractors, bulldozers and log loaders.  They would set new standards for emissions of volatile organic compounds (VOCs), nitrogen oxide (NOX), particulate matter (PM), and other pollutants listed as toxic substances in Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA 1999). 

The proposed amendments would align Canadian emission standards in this area with those of the United States Environmental Protection Agency, and would recognize U.S. EPA certificates as evidence of compliance.

Transition engine provisions would also be available.

For more information see:
http://www.gazette.gc.ca/rp-pr/p1/2011/2011-02-12/html/reg1-eng.html

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Regulations Amending the Renewable Fuels Regulation

The Federal Government is proposing a coming into force date of July 1, 2011, for the Renewable Fuels Regulations as published in the Canada Gazette Part II on September 1, 2010.  These Regulations include provisions requiring an average of 2% for renewable content in diesel fuel and heating distillate oil.

For more information see:
http://www.gazette.gc.ca/rp-pr/p1/2011/2011-02-26/html/reg3-eng.html

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Regulations Respecting Products Containing Mercury

The Federal Government is proposing regulations which would prohibit the manufacture, import and sale of products containing mercury, with exceptions for essential products which have no viable alternatives (for example, lamps, certain health, safety and research applications and dental amalgam).  Exempted products would be listed in the schedule to the Regulations. 

The proposed regulations would allow permits to be granted based on product purpose (critical use vs. novelty), availability of alternatives, risks and benefits for human health and the environment and end of life management practices.  Requirements for permitted and exempted products may include labeling, reporting and mercury content limits for products such as fluorescent lamps and neon signs.

The proposed regulations would come into force in 2012.

For more information see:
http://www.gazette.gc.ca/rp-pr/p1/2011/2011-02-26/html/reg4-eng.html

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Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations

The Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations were published in the Canada Gazette Part II of February 16, 2011.   The objective of the regulations is to establish Canadian emission standards to the reduce air pollution from these classes of engines, vessels and vehicles. 

For the first time in Canada, these regulations set Canadian emission standards and test procedures for marine engines, vessels with installed fuel lines or fuel tanks and off-road recreational vehicles. 

The regulations align with those of the United States Environmental Protection Agency and recognize the U.S. EPA certificate as evidence of conformity.

For more information see:
http://www.gazette.gc.ca/rp-pr/p2/2011/2011-02-16/html/sor-dors10-eng.html

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Memoranda of Understanding on Substitution under the Canadian Environmental Assessment Act

A Memoranda of Understanding has been entered into between the federal Minister of Environment and the Canadian Nuclear Safety Commission under which it is agreed that the CNSC’s public hearing and licensing process can be an appropriate substitute for an assessment by a Review Panel under the Canadian Environmental Assessment Act and its Regulations. 

The MOU applies when an application is made to the Commission to issue a licence under the Nuclear Safety and Control Act for a project that the Commission would otherwise recommend the Minister refer to a Review Panel in accordance with provisions of the CEAA.  MOU mandates the Commission to conduct the review in a manner that discharges the requirements set out in CEAA, substituting  the Commission’s process for that of an assessment by a Review Panel.

The Commission is to coordinate the participation of other Responsible Authorities and Federal Authorities in the environmental assessment as well as undertake early notification and consultations with authorities of provincial jurisdictions which may have an interest in the matter.  As well, the MOU specifies elements of the review which the Commission must perform, and that participant funding for the review is to be provided and administered by the Commission.

For more information see:
http://nuclearsafety.gc.ca/eng/lawsregs/agreements/mou-substitution-environmental-assessment-process.cfm

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Provincial News

Alberta

New Tire Surcharges

Alberta has amended the Tire Designation Regulation (AR 95/2004) to provide a schedule of maximum surcharges for different tire types pursuant to the Designated Material Recycling and Management Regulation.  The maximum charge had been $4, while the new schedule provides maximum surcharges that range from $4 to $200.  The surcharge on passenger and light truck tires remains at $4, while medium truck tires (>19.5 inches) have a maximum surcharge of $9, small OTR tires have a maximum surcharge of $40, medium OTR tires $100 and large OTR tires have a maximum surcharge of $200.

For more information see:
http://www.qp.alberta.ca/documents/gazette/2011/text/01_Jan15_Part2.cfm

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British Columbia

Amendments Related to the Wood Residue Burner & Incinerator Regulation

B.C. has repealed the Rebate of Waste Management Fees Regulation (B.C. Reg. 267/2000).  This regulation allowed the Minister to rebate fees or charges paid under the Wood Residue Burner and Incinerator Regulation (B.C. Reg. 519/95), in order to foster the development or commercialization of value-added applications for wood residue.  B.C. has also repealed the Ootsa Lake Beehive Burner Regulation (B.C. Reg. 142/2001).

B.C. has amended the Wood Residue Burner and Incinerator Regulation (B.C. Reg. 519/95).  The amendments repeal and amend existing provisions of the regulation, and replace the existing schedules with a list of Authorized Burner Facilities (Schedule 1).  The amended section 2 prohibits the use of a burner facility to dispose of wood residue, unless a permit is held for this purpose.  Permit holders may use burner facilities to dispose of wood residue until December 31, 2016.

See:
http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/51_519_95

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Ontario

REA Application Fees Take Effect

Fees related to the processing of Renewable Energy Approval applications, made pursuant to the Green Energy and Economy Act, 2009, took effect on March 15, 2011.  Fees vary by project class, and are capped at $1,000 for small scale and farm-based projects.  The cap applies to REA applications for Solar Class 3 projects (solar PV installations, 500 kilowatts or less), Wind Class 2 (micro/small turbine, less than 50 kilowatts), Anaerobic Digestion, Class 1 and 2 (on farm, green bin, biomass & farm materials), and Thermal Treatment Class 1 and 2 (on-farm, wood and biomass burning).   

Where a REA is required for other project classes, however, the fees can be much higher.  For example, the fee for a REA application for a Class 4 Wind project (onshore windfarm over 50 MW) is $56,458, and the application fee for a REA for a Class 5, off-shore commercial wind farm is $67,905.  The application fee for a REA for a Class 3 Solar Farm  is $12, 844. 

For further details, and for the fees applicable to other project types, see the information posting on the Environmental Registry titled “Renewable Energy Approval (REA) Fees”, posting number 011-1203, at http://www.ebr.gov.on.ca/.

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Further Amendments to Brownfields Regulation 153/04

Ontario is proposing further amendments to its Brownfields Regulation 153/04. The amendments are described as technical in nature and consistent with the policy intent of the Brownfield Regulation as amended in December 2009. 

The proposed amendments are said to clarify the intent and scope of certain provisions of the Brownfield Regulation, correct minor errors and incorporate new data. The proposed amendments include the following:

  • Improvement to the standards
  • Improvements to Modified Generic Risk Assessment (MGRA) model that do not impact standards, and Process for Updating MGRA
  • Ensure consistency between Modified Generic Risk Assessment (MGRA) and Ontario Regulation 153/04
  • Clarify which wells are to be captured in section 35 of Ontario Regulation 153/04
  • Clarify standards applicable to “arenas”
  • Changes to the Potentially Contaminating Activities list
  • No soil exists at property to meet sampling requirements
  • Confirmation sampling

The Ministry of Environment is also proposing to amend the “Protocol for Analytical Methods Used in the Assessment of Properties under Part XV.1 of the Environmental Protection Act”.   The Protocol is to provide Qualified Persons and laboratories clear guidance in all aspects of the sampling process to ensure the highest quality data is provided in the decision-making while meeting regulatory requirements. 

The proposed amendments are to come into effect on July 1, 2011. 

For more information see:
http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTEyMDMw&statusId=MTY4MDc1&language=en

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Québec

Regulation Respecting the Declaration of Water Withdrawals Amended

Quebec published notice in January of proposed amendments to the Regulation Respecting the Declaration of Water Withdrawals, c.Q-2, r. 14, in order to implement certain provisions of the Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement entered into in 2005 between Quebec, Ontario, Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin.  Among other things, the amendments establish standards for the declaration of water withdrawals to be used to establish reference volumes pursuant to the Agreement.  New provisions would require an initial declaration of existing withdrawals to be made by March 31, 2012, for facilities or works with a rated capacity equal to or greater than 379,000 litres per day.  Annual declarations would also be required required.  For new withdrawals authorized for the purpose of a transfer out of the St. Lawrence River Basin, measuring equipment must be installed in order to measure, rather than estimate, reference volumes.

For more information see:
www.mddep.gouv.qc.ca/eau/prelevements/reglement2011-en.pdf

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What's New

Jennifer Danahy spoke at the Canadian Bar Association NEERLS Summit on Water Law:  Property, Protection and Policy, taking place in Banff on April 7-8, 2011.  For details see http://www.cba.org/CBA/sections_neerls/main.

On April 18, 2011 Harry Dahme will be moderating the panel presentation on "The Proactive Identification of Critical Environmental Issues in Offshore Wind Development" at the Off-Shore Wind Conference sponsored by Gowlings and EUCI.  For more information or to register please go to:

http://www.gowlings.com/Events/Invitations/2011/TOR_0418.en.html

Gowlings –Environmental Law for Business seminar will take place on May 12, 2011.  Outside experts and Gowlings’ lawyers will be addressing new developments in the area of Environmental Law.  For a complete seminar program and to register please see:

http://www.gowlings.com/Events/Invitations/2011/TOR_0512.en.html

On June 10, 2011, Harry Dahme will be presenting at the 16th Annual Contaminated and Hazardous Waste Site Management Course offered by GOwen Environmental in Toronto between June 6-10, 2011.  For more information about the Course, please see: http://www.contaminatedsite.com/.

Gowlings Environmental Group, and three members of the Environmental National Practice Group, Alan Blair, Harry Dahme and David Estrin were recognized by Chambers Global 2011, an authoritative legal rankings directory that recognizes law firms and lawyers with true international practices.  Chambers Global 2011 rankings are the result of 6,500 peer and client interviews over a 12-month period. These rankings also appear in Chambers U.K. and Chambers Europe guides.

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Harry Dahme (Toronto)
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