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May 7, 2012 - Volume 9, Number 3

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Streamlining the Environmental Assessment Act: An Overview
By: Shane Hopkins-Utter

On Thursday April 26, 2012, the Conservative Government tabled Bill C-38 which proposes to repeal the existing Canadian Environmental Assessment Act (“CEAA, 1992”) and to replace it with the Canadian Environmental Assessment Act, 2012 (“CEAA, 2012”)

The new legislation is designed to change the environmental assessment process in a number of ways.  It proposes to make the review process for major projects more predictable and timely, reduce duplication in the review process, and enhance consultations with Aboriginal peoples.  Unlike the CEAA, 1992, the CEAA, 2012 will substitute provincial assessments for federal assessments or consider them as equivalents; set binding timelines on federal agencies to make decisions, issue permits, and conduct assessments; reduce the number of federal agencies responsible for assessments; and provide funding to support consultations with Aboriginal people to ensure their rights are respected.  Significantly, it also introduces enforcement provisions to ensure proponents comply with conditions set out in the decision statement issued at the end of the assessment, as well as federal inspections and follow-up programs and administrative penalties.  

Read the full article - Streamlining the Environmental Assessment Act: An Overview, by Shane Hopkins-Utter

For the Ministry of Natural Resources April 17, 2012 media release, go to:
http://www.nrcan.gc.ca/media-room/news-release/2012/45/6148

To access the Responsible Resource Development Booklet, go to:
http://actionplan.gc.ca/eng/feature.asp?pageId=446

To track the progress of Bill C-38 and to access the full text, go to:
http://www.parl.gc.ca/LegisInfo

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City of Vancouver to Consider Oil Tanker and Pipeline Indemnification Bylaw

On May 1, 2012, City of Vancouver Mayor Gregor Robertson tabled a motion to have municipal staff prepare a by-law requiring oil tankers and pipeline operators to indemnify the city and local businesses for “worst case scenario” oil spills.  The Vancouver City Council referred the motion to the City’s Standing Committee on Planning, Transportation and Environment to hear from speakers.  The Standing Committee conducted a hearing on May 2, 2012, and the motion was passed with one councilor opposed.

The preamble to the motion says that it is in response to Kinder Morgan’s announced plan to double the capacity of its pipeline and the anticipated increase in tanker traffic, and the Federal Government’s announcement on March 29, 2012 that B.C.’s command centre for emergency oil spills will be closed and oil spill response be centralized in Quebec due to budget constraints.

The contemplated by-laws would apply to pipeline operators and oil tankers using Burrard Inlet, Vancouver Harbour, and/or the Fraser River.  The motion also provides that while the by-law is being drafted for consideration by the Council, the Mayor will write to Prime Minister Harper to express the City’s opposition to any increase in tanker traffic as an unacceptable and unmitigated risk to Vancouver’s economy and environment. 

However, UBC Law Professor Ian Townsend-Gault pointed out in a phone interview on May 4 that pipelines that cross provincial boundaries and tanker traffic are federally-regulated activities, meaning the City’s proposed by-law likely falls outside of its jurisdiction.  If the City wishes to enforce the contemplated by-law, it may have to argue its case in court.  Otherwise, the motion may simply be a starting point in a dialogue between the City of Vancouver and the provincial and federal governments.

See C. Pablo, “Vancouver oil tanker bylaw could run aground in legal waters”, Straight.com May 4, 2012: http://www.straight.com

The text of the motion is available through the City of Vancouver City Council at:

http://vancouver.ca/ctyclerk/cclerk/20120502/ptec20120502ag.htm

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B.C. Clean Energy Vehicle Program: Recharging Stations Announced

B.C.’s Ministry of Environment announced at the beginning of April that the Clean Energy Vehicle (CEV) Program is being helped by a $2.74-million Community Charging Infrastructure Fund that will be used to create 570 public charging stations across municipalities, regional governments, First Nations, and B.C. businesses and institutions by March 31, 2013.  The Community Charging Infrastructure Fund will be managed, promoted and administered by the non-profit Fraser Basin Council.

The Province will also add three Level 3 DC Fast Charging Stations on the highway from B.C. to California, and another 27 Level 3 DC Fast Charging Stations throughout the province.  These fast chargers allow electric vehicle to be recharged in approximately 15 to 20 minutes.  The Province has also committed funds to help the City of Vancouver install electric vehicle charging stations in the city.

For more information, visit the BC Ministry of Environment Newsroom at: http://www.newsroom.gov.bc.ca/ministries/environment-1

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Ontario Toxic Substance Reduction Plans Due December 31, 2012
By: Harry Dahme and Gatlin Smeijers

Certain classes of facilities designated by regulations made under Ontario’s Toxics Reduction Act, 2009 (the “TRA”) are required by December 31, 2012 to prepare a Toxic Substance Reduction Plan (“TSRP”) with respect any “toxic substance” used or created at the facility.  

Set out below is a summary of the requirements under the TRA and the required contents of a TSRP. 

1.0  Applicability

A “Toxic Substance” is defined as any substance that must be reported to the National Pollutant Release Inventory (“NPRI”) for the calendar year as is prescribed by the NPRI notice published annually in the Canada Gazette.  The Regulations expressly include Acetone as a Toxic Substance and exclude any product containing an NPRI listed substance that is intended for human or animal consumption if it is produced at a food or beverage manufacturing facility.

A TSRP must be prepared, in respect of a Toxic Substance used or created, at any facility that:

  • Is a manufacturing facility identified by a North American Industry Classification System (“NAICS”) code starting with 33, 32, or 33, or is a mineral processing facility (NAICS 212) where chemicals are used to separate, concentrate, smelt, or refine minerals from ore;
  • Employs one or more persons;
  • Uses or creates any quantity of Toxic Substance, provided that the NPRI notice for the calendar year requires the owner and operator to provide information in respect of the substance, or in the case of Acetone, section 4 of Ontario Regulation 127/01 applies.

2.0  Toxic Substance Accounting

Where an owner and operator of a facility is required to prepare a TSRP for a substance, they must also ensure that for each process that uses or creates the substance, the substance is tracked and quantified.  This accounting must show how the substance is created or enters the process, how the substance is transformed or destroyed, and what happens to the substance once it leaves the process. 

The Regulations require that a host of records be created during the accounting exercise including:

  • A description of every “stage” of the manufacturing process that uses or creates the substance and how each stage is divided into one or more “processes” that use or create the substance;
  • Process flow diagrams illustrating how the substance moves through each process and the relationship between each process;
  • A record of the tracking an quantification of the substance for each calendar year in which the TRA and Regulations apply;
  • A record describing why the quantities of the substance entering or created during the process are not approximately equal to the quantities being destroyed or removed; and
  • A description of the methods used to track and quantify the substance in each process and why those methods were chosen;

The owner and operator, must ensure that the best available methods for tracking and quantifying a substance are used, considering the technical specifics of the processes, industry standards, economic feasibility, and any methods required to be used for the purposes of meeting other regulatory reporting requirements (such as NPRI).  Such methods will generally include; continuous monitoring, predictive monitoring, source testing or sampling, mass balance, published emission factors, site-specific emission factors, and engineering estimates.

For further information regarding toxic substance accounting please see the following MOE guidance documents:

  • Ontario Toxics Reduction Program – A Guide For Regulated Facilities (PIBS 8695e) at page 9 to 14; and
  • Ontario Toxics Reduction Program - Toolkit for Toxic Substance Accounting (PIBS 8498e).

3.0  Content of TSRPs

The TRA and associated Regulations prescribe detailed requirements regarding what must be included in a TSRP.   The content requirements can generally be subdivided into five groups: 

Plan Objectives: Each TSRP must contain a statement that the owner and operator of the facility intends to reduce the use or creation of the Toxic Substance at the facility.  If the TSRP does not contain this statement, the reasons for its omissions must be explained.  TSRPs must also contain a description of the objectives of the plan, including any reduction targets.

Toxic Substance Accounting Information:  Each process the uses or creates the Toxic Substance must be described in the TSRP.   Information collected and records produced during the toxic substance accounting exercise, such as the tracking and quantification information and the process flow diagrams, must also be included.

Reduction Option Analysis:  Options for reducing the use and creation of the Toxic Substance must be identified and analyzed for technical and economic feasibility.  The Regulations require that at least one option be identified from the following reduction methods; materials/feedstock substitution, product design/reformulation, equipment/process modification, spill/leak prevention, on-site reuse/recycling, improved inventory/purchasing techniques, and improved training/operating.  If an option from each of these methods cannot be identified, an explanation is required.  For each option that will be implemented, the TSRP must contain a description of how the implementation will proceed, an implementation timetable, and an estimate of the amount of the reduction.

Annual Cost Information:  Each TSRP must include an estimate of the direct and indirect annual costs related to the use or creation, release, disposal, or transfer of the Toxic Substance and the estimated cost of the substance being contained in a product that leaves the facility.

Administrative Information:  Subsection 18(2) of the Regulations provides a list of additional information required, including facility, owner and operator identification information, in addition to other miscellaneous information.

While a TSRP must be developed for each toxic substance used or created at a facility, each TSRP may be incorporated into a single document.  A certification from the highest ranking employee at the facility, stating that he/she has read the plan and is familiar with its contents and, that the plan is factually accurate and complies with the TRA and Regulations.  Each TSRP must also include any recommendations, including the rationale for the recommendations, made by the Licensed Planner, as is discussed below.   

4.0  Planner Recommendations and Certification

Prior to submitting the TSRP, the owner and operator of a facility is required to provide a Licensed Planner with a draft copy for the purpose of obtaining recommendations.  The recommendations are for the purpose of improving all aspects of the TSRP, such as the potential for reducing the use or creation of the toxic substance and the business rationale for implementation.  The Licensed Planner must address any relevant issues he/she identifies including; potential improvements to the expertise relied on in preparing the TSRP, potential improvements to the toxic substance accounting, unidentified technically and economically feasible reduction options, potential improvements to cost estimates, and the viability of implementation timetables.

Prior to submission of the TSRP, a Licensed Planner must certify that he/she is familiar with the processes at the facility, that he/she agrees with the toxic substance reduction estimates, and that the TSRP complies with the TRA and Regulations.

5.0  TSRP Summaries and Reports

Where an owner and operator is required to prepare a TSRP, a summary of the plan must also be prepared and provided to the Director and made available to the public on the internet.  Summaries must be provided to the Director, in the case of first version of the TSRP, on or before December 31, 2012.   In the case of subsequent versions of the TSRP, the summary must be submitted within 30 days after the TSRP has been amended, or on or before December 31 in the year in which the TSRP must be reviewed. 

Each summary must the following information:

  • Any targets for reducing the use or creation of the Toxic Substance;
  • A projection of the effectiveness of the TSRP in meeting the objectives;
  • Copies of the certifications contained in the TSRP;
  • Various administrative information that was included in the TSRP;
  • The name of all other Toxic Substances used or created at the facility for which TSRPs must be prepared;
  • A copy of the statement by the owner and operator included in the TSRP regarding the intention to reduce the use or creation of the Toxic Substance and where no statement is made, the reasoning for not attempting to reduce;
  • A description of any reduction options to be implemented, the anticipated implementation timelines, and the estimated reduction amounts or a statement that no reduction options will be implemented with the associated reasoning;
  •  A statement that the summary accurately reflects the current version of the plan.

Similarly, where a TSRP must be prepared, the owner and operator must ensure that a report on the TSRP is also prepared.  The report must be provided to the Director on or before June 1 of each year a TSRP is required.     Each report must include the following information, where applicable:

  • A summary of the results of the toxic substance accounting, including a comparison to the results of the previous reporting periods (if applicable);
  • A description of the effectiveness of any steps taken towards achieving the objectives of the TSRP;
  • A description any amendments made to the TSRP during the reporting period;
  • Various administrative information;
  • The name of all other Toxic Substances used or created at the facility for which TSRPs must be prepared;
  • A statement regarding incidents out of the normal course of events and whether the incident affected the results of the tracking and quantification.

Each report must also include a certification from the facility’s highest ranking employee stating that he/she has read the report, is familiar with its contents, understands the information contained in the report to be accurate, and that the report complies with the TRA and Regulations.

6.0  Toxic Substance Reduction Planners

The Regulations prescribe a licensing process for Licensed Planners that includes education, work experience, course work, and testing requirements.  As of April 2012, the MOE has not issued any Toxic Substance Reduction Planner Licenses.  Once the MOE begins issuing licences, the MOE website will be updated to include a list of Licensed Planners with their contact information.

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David Estrin Prize Awarded

Darren Vallentgoed of Dalhousie University’s Schulich School of Law is the winner of the 2012 Canadian Bar Association (CBA) National Environmental, Energy and Resources Law Section (NEERLS) Law School Essay Contest, the “David Estrin Prize”.  The Law School Essay Contest promotes and rewards interest in environmental, energy, and resources law topics in Canadian law schools.

Mr. Vallentgoed’s essay, “Open Seas, Open Season: The Impending Challenge of Regulating Circumpolar Shipping in the High Arctic”, examines the issues surrounding the opening of the Arctic to commercial shipping.

The award honours David Estrin, a Gowlings partner and a Canadian pioneer of environmental law. Mr. Estrin has advised government agencies, corporations, and institutions, assisted in policy development and drafting of legislation in Ontario, Alberta, and Canada, and appeared before provincial and federal courts. He has written books on environmental law and taught environmental law and policy at the university and college level.

Gowling Lafleur Henderson LLP is a Foundation Sponsor of the award.

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What's Happening

Harry Dahme will be presenting a lecture on the “ Canadian Law of Contaminated Sites” to the 17th Annual Contaminated and Hazardous Waste Site Management Course being held in Toronto June 11 - 15, 2012, presented by GOwen Environmental Limited.

Mark Madras will be speaking at a Warsash Group seminar June 21 and 22 on “Crises Management, Supporting Your Organization in a Time of Crises”.  Mark was the Canadian panel member, along with environmental counsel from Central and South America, at a New York City Bar seminar on Environmental Law in the Americas, held in New York on May 7, 2012.

Paul Granda will be presenting the “Annual Environmental Jurisprudence Review “on May 15, 2O12 organized by the Environment, Energy and Natural Resources Section of the Québec Division of the Canadian Bar Association in Montréal.

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Harry Dahme (Toronto)
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