FEDERAL NEWS

Publication of Advice to the Federal Government on Canada's Climate Change Plan

The National Roundtable concluded that there was likely an overestimation of emission reductions in the Plan, related principally to double-counting or lack of "additionality", free ridership, and a failure by policy makers to account for the "rebound effect" in relation to efficiency measures. (The rebound effect occurs when consumers who save money due to energy efficiency use their appliances or vehicles more than they would have in the absence of the energy-saving measures.)

The National Roundtable also concluded that due to Canada's refusal to use international credits, coupled with a Plan that does not achieve sufficient emissions reductions, means that Canada will almost certainly not achieve its Kyoto Protocol obligations within the first obligation period between 2008 and 2012. A copy of the National Roundtable's report can be accessed at http://www.nrtee-trnee.ca/eng/publications/c288-response-2007/index-c288-response-2007-eng.htm.

2007 Report of the Commissioner of the Environment and Sustainable Development

The Commissioner of the Environment and Sustainable Development, Ron Thompson, tabled his 2007 Report to the House of Commons on October 30th. The Report found the following:

Sustainable Development Strategies

In 1995, Parliament amended the Auditor General Act to require most federal departments to prepare formal accountability documents called sustainability strategies intended to inform Parliament of the significant social, economic and environmental impacts associated with the departments' policies and programs and how each department would address them. The Commissioner reported that sustainable development strategies are not helping to ensure that departments assess the environmental impacts of their policies and programs along with the social and economic impacts. "The ambition and momentum that existed in the early stages of sustainable development strategies have faded", said Mr. Thompson.

Furthermore, the Commissioner noted that there is still no sustainable development strategy for the federal government as a whole to guide the efforts of the 32 departments and agencies now producing strategies.

Environmental Petitions

Petitions are letters sent by Canadians to the Auditor General as a way to present their environmental concerns and questions to specific ministers of the federal government. Ministers are required to respond to petitions in writing within 120 days. More than 250 petitions have been submitted from across Canada over the past 11 years.

The Commissioner reported that petitioners and government officials alike believe that petitions have had an impact on the federal government's management of environmental matters. The Report points out, however, that the petitions process is not well known by Canadians and that better guidance for petitioners and departments would facilitate consideration by department officials and responses from ministers.

A copy of the full Report is available at http://www.oag-bvg.gc.ca/domino/reports.nsf/ html/c2007menu_e.html.

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Interim Response to the Report of the House of Common Standing Committee on Environment and Sustainable Development on the Five-Year Review of the Canadian Environmental Protection Act, 1999

The Canadian Environmental Protection Act, 1999 (CEPA, 1999) requires a committee of one or both houses of Parliament to review the Act every 5 years. The House of Commons Standing Committee on Environment and Sustainable Development conducted its review and released its report in May 2007. The Senate Standing Committee on Energy, the Environment and Natural Resources is also reviewing the Act and plans to issue its report shortly.

The Government of Canada has issued an interim response to the report of the Standing Committee on Environment and Sustainable Development. The interim response describes the Government's main environmental protection initiatives: the Chemicals Management Plan and Turning the Corner: An Action Plan to Reduce Greenhouse Gases and Air Pollution. These initiatives provide the objectives for how the Government will use CEPA, 1999 over the next few years. In addition, the interim response provides preliminary responses to each of the Standing Committee's recommendations.

The interim response is available at http://www.oag-bvg.gc.ca/domino/reports.nsf/ html/c2007menu_e.html.

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New Substances Program Advisory Note: Streamlining the Notification Process for Naturally Occurring Micro-organisms with a Low Hazard Potential

The Advisory Note sets out a policy concerning the waiver of information requirements provided for under section 106(8)(a) of CEPA, 1999 for naturally occurring micro-organisms with a low hazard potential.

The Minister will consider granting a waiver with respect to a naturally occurring micro-organism with a low hazard potential if the micro-organism meets the following six criteria. The micro-organism must:

1. be found naturally in the Canadian environment and its genome must not be modified;
2. have a history of safe use;
3. not be known as a cause of disease in healthy or vulnerable humans;
4. not be known as a plant pathogen nor an animal pathogen;
5. not produce toxins, or by-products known for having negative effects on environment or human health; and
6. not be known to be invasive (i.e. not having the ability to establish itself, persist, out-compete indigenous species, take over the new environment and threaten biological diversity).

The Advisory Note is available at http://www.ec.gc.ca/substances/nsb/eng/a200707_e.shtml.

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Intent to Develop National Standards for Sewage Treatment

At the end of September, the federal government signalled its intention to develop draft regulations governing sewage treatment, for publication in 2008. The regulations are intended to impose national standards on municipal, aboriginal, federal and private sewage treatment plants, at more than 4,600 wastewater collection and treatment systems across the country. In addition to preventing the release of raw sewage, the regulations will tackle phosphates, mercury and pharmaceutical products in wastewater. The government also committed to providing $33 billion in support for infrastructure through the Building Canada infrastructure plan.

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Charges for Industrial and Commercial Water Use

A new cost-recovery regulation has been enacted under the Ontario Water Resources Act, S.O. 1990, c. O. 40 ("OWRA"), which imposes charges of $3.71 per million litres of water used annually for certain industrial and commercial water users (O. Reg. 450/07, Charges for Industrial and Commercial Water Users). In particular, the charges apply after January 1, 2009 to producers of: bottled water, beverages, canned or pickled fruits and vegetables, ready-mix concrete, certain non-metallic minerals, pesticide, fertilizer and other agricultural chemical manufacturers, and certain inorganic chemicals. Water users are obligated if they have a Permit to Take Water, or if they use more than 50,000 litres of water on any given day from a waterworks that they do not also own. The regulation also imposes reporting requirements. Bills will be issued within a year of reporting, and must be paid within 30 days of receipt. See http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_070450_e.htm for details.

Amendments to the Water Taking Regulation

Amendments were also made to the Water Taking Regulation (O. Reg. 387/04) to impose a requirement to obtain a Permit to Take Water on the commercial and industrial users affected by Reg. 450/07, described above. As of Jan. 1, 2009, such persons must have a permit under section 34 of the OWRA, and applications for such permits must be made by June 30, 2008. The amendments also deleted the section of the regulation covering water transfers (s. 10) and the section outlining the regulation's purpose (s.1).

Financial Plans under the Safe Drinking Water Act

A new regulation has been enacted under the Safe Drinking Water Act, 2002, S.O. 2002, c. 32. The Financial Plans Regulation, O. Reg. 453/07, was filed on Aug. 14, 2007 and requires the preparation and approval of financial plans prior to a person making an initial application or applying for renewal of a municipal drinking water licence. See http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_070453_e.htm for details.

Air Pollution Amendments

A series of amendments has been made to O. Reg. 419/05, Air Pollution - Local Air Quality. The amendments include modifications to the list of approved dispersion models, revised wording to clarify existing provisions, and new and/or substantially amended sections dealing with sulphur compounds, opacity, available exemptions for standby power sources, and the ability of the MOE to require technology reports on available mitigation technologies. The schedules have also been modified. For the revised regulation see http://www.e-laws.gov.on.ca/html/regs/english/ elaws_regs_050419_e.htm. For the text of the amendments see http://www.gov.on.ca/GOPSP/en/graphics/170117.pdf, alongside the previous regulation at http://www.e-laws.gov.on.ca/html/regs/english/ elaws_regs_050419_ev004.htm#BK1.

It should also be noted that a proposal for an order under subsection 32(31.1) of O. Reg. 419/05, through which a Director could order steps taken to advise the public of an altered Schedule 3 standard, is now considered a Class II Proposal for the purposes of the Environmental Bill of Rights (O. Reg. 517/07), requiring public notice on the Environmental Registry.

Finally, the Ambient Air Quality Criteria Regulation (R.R.O. 337) was revoked on Aug. 31, 2007, through O. Reg. 518/07, which will take effect on Aug. 31, 2008.

Amendment to Environmental Assessment Act

Ontario's Environmental Assessment Act, R.S.O. 1990, c. E-18, was amended on Sept. 7, 2007 to exempt the Minister of Municipal Affairs and Housing from subsections 12.2(2) and (6). Subsections 12.2(2) and (6) normally restrict the issuance of approvals or the granting of loans, subsidies or financing inconsistent with, or prior to receipt of, an EA approval. The exemption applies to orders made under section 47 of the Planning Act.

Phase-Out of Coal Use at Four Generating Stations

On August 24, 2007, the Ontario government filed a regulation requiring four generating stations to cease burning coal in order to generate electricity by December 31, 2014. The four generating stations affected are: Atikokan, Lambton, Nanticoke and Thunder Bay (O. Reg. 496/07). Access the regulation at http://www.e-laws.gov.on.ca/html/regs/english/ elaws_regs_070496_e.htm.

Carbon Offsets & Progress on Walkerton

Ontario announced that as of Sept. 5, 2007, all 121 recommendations set out in the Report of the Walkerton Inquiry have been implemented. On the same day, Ontario signalled its interest in creating a cap and trade system for greenhouse gas emission credits in the Province by establishing a working group of experts to develop protocols for an offset system. For the details of both announcements see http://www.ene.gov.on.ca/en/news/index.php.

Mandatory Reporting of Certain Emissions of Contaminants into the Atmosphere

The Regulation respecting mandatory reporting of certain emissions of contaminants into the atmosphere came into force as of November 6, 2007. The Regulation establishes the thresholds over which an enterprise, facility or establishment ("facility") is required to report its emissions in relation to the contaminants associated with the phenomena that increase the greenhouse effect, acid rain, smog and toxic pollution and identifies the information to be provided. This includes confidential information that is necessary to calculate the quantity of the contaminants emitted, such as data pertaining to production, fuels, raw materials, equipment and processes.

The Regulation applies to every operator whose facility emits a contaminant listed in Schedule A of the Regulation into the atmosphere at a level that is equal to or greater than the reporting threshold prescribed for the contaminant. The report required by the Regulation must be communicated to the Minister no later than June 1^st of each year for the preceding calendar year. The information to be provided must include any data pertaining to production, fuels used and raw materials relevant to the calculation or assessment of the quantities of contaminants emitted on an annual basis, and the emission factors used for the calculation or assessment. Fuels integral to a process or used to supply transportation machinery integral to a process must be taken into account, as well as fuels used to heat facilities. If an enterprise has several establishments, a separate report must be made for each of them. Where an establishment has more than one facility, the data pertaining to each facility must also be identified separately. In every case, the operator of the facility must identify the activities, processes or equipment that are the source of contaminant emissions by indicating separately, for each of them, the quantity of fuels and raw materials used, as well as the volume of production.

In the case where the operator of a facility is required, under the Canadian Environmental Protection Act (1999), to report to the Minister of the Environment of Canada, in accordance with the National Pollutants Release Inventory, the information reported to the federal Minister of the Environment on emissions to the air of contaminants listed in Schedule A of the Regulation must also be transmitted to the provincial Minister. Any new contaminant that would have to be reported to the federal Minister of the Environment must also be reported to the Minister.

The information to be communicated to the Minister can be determined based on one of the following methods of calculation or assessment:

• emissions or sampling;
• a sampling and continuous emission monitoring system;
• an emission estimation model;
• a calculation that may include the use of an emission factor published in the scientific literature or documentation specific to the facility;
• mass balance; or
• predictive emission monitoring.

The report to the Minister must state that the data transmitted was established in conformity with the best practices that apply and the requirements of the Regulation.

The persons or municipalities required to provide the information pursuant to the Regulation must retain the information and the calculations, assessments, measurements and other data on which emission data was based, for a minimum of five years from the date on which they were produced.

Failure to communicate the required information to the Minister, or the inclusion of false or inaccurate information, or the failure to include prescribed data or to retain it for the prescribed period constitutes an offence that may give rise to a fine of $5,000 to $25,000 where the offence is committed by a legal person, any such fine doubling in the case of a second or subsequent offence.

It is anticipated that the pulp and paper, aluminum, cement, petroleum refining, chemical and petrochemical industrial sectors, as well as municipal installations such as landfills and incinerators will be the main target of the Regulation.

Where an operator wishes to ensure the confidentiality of the information provided to the Minister under the Regulation, appropriate measures should thus be taken in accordance with the principles set forth under Québec access to information legislation when submitting the information. The Regulation is available at http://www2.publicationsduquebec.gouv.qc.ca/ dynamicSearch/telecharge.php?type=3&file=/Q_2/Q2R3_3_A.HTM.

New ClimatSol Program

The Ministry of Sustainable Development, Environment and Parks has created a new program called ClimatSol in order to encourage the rehabilitation of contaminated lands situated in Québec municipalities. The program will end on March 31, 2010. The primary objective of ClimatSol is to create favourable conditions towards integrating, within redevelopment projects, elements that will have a real and measurable impact on the reduction or abatement of greenhouse gas emissions or will increase energy efficiency of buildings. The program will provide for $50,000,000 over three years to be allocated as follows: $25,000,000 for the City of Montreal; $5,000,000 for the City of Québec; and $20,000,000 for other municipalities in Québec. The program expects that municipalities will also participate financially to admissible projects.

The program provides that a project must contribute to local sustainable development with the view of reaching one of the following goals: maintaining or creating wooded or vegetated areas, integrating green technologies in buildings, rehabilitating contaminated lands which presently prevent the development of municipalities because of their environmental history, encouraging the revitalization of urban sectors, improving the quality of the environment, ensuring the protection of citizens' health and improving their lifestyles, encouraging the use of recognized treatment technologies to decontaminate soils, increasing economic activity and municipal revenues, and favouring job creation.

Municipalities can also participate in the program, if the project provides for the maintenance or creation of vegetation areas and, if a construction project is involved, they include green building technologies in order to reduce energy consumption in a tangible and measurable fashion.

The program provides for payment of 50% of all eligible costs for the transportation of the soils and materials mixed with contaminated soils to be treated through provincially recognized and approved technologies, 50% of all eligible costs relating to in situ treatment of contaminated soils and water through provincially recognized and approved technologies, 30% of all admissible costs for the transportation and elimination or reclamation off-site of soils or materials mixed with contaminated soils, and 50% of all other admissible costs. The maximum financial aid for a given project, however, will be limited to $1,000,000.

The dates to submit an application for financial aid within the ClimatSol program are: November 1, 2007, January 15, 2008, May 15, 2008, September 15, 2008, January 15, 2009, May 15, 2009, September 15, 2009 and January 15, 2010.

More information regarding the ClimatSol program can be accessed (in French only at this time) at http://www.menv.gouv.qc.ca/sol/terrains/ climatsol/index.htm.

Draft Government Sustainable Development Strategy

The Québec government implemented a key element of the Sustainable Development Act by presenting its draft Government Sustainable Development Strategy and announcing the launch of an online public consultation. More information is available at http://www.mddep.gouv.qc.ca/ developpement/strategie_gouvernementale/consultation/index_en.htm.

Regulation respecting Pulp and Paper Mills

The Regulation respecting pulp and paper mills and amending various regulatory provisions was published in the Gazette officielle du Québec on October 3, 2007. The Regulation came into force on November 1, 2007. The Regulation applies to a reserved area or an agricultural zone established under the Act.

The comprehensive Regulation covers the following areas: wastewater management, atmospheric emission standards, monitoring and analysis of effluent and wastewater, measurement of emissions and pulp and paper mill residual materials management. The Regulation is available at http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=3&file=/Q_2/Q2R12_1_A.HTM.

Paint and Paint Container Designation Regulation and Beverage Container Recycling Amendment Regulation

The new Paint and Paint Container Designation Regulation designates materials for the purposes of the Designated Material Recycling and Management Regulation and sets maximum advance disposal surcharge rates for paint and paint containers. The Regulation expires on June 30, 2012 at which point it will undergo a review. The Regulation is available at http://www.qp.gov.ab.ca/documents/Regs/2007_200.cfm?frm_isbn=9780779726509.

The Beverage Container Recycling Amendment Regulation was amended so that it now expires on April 30, 2008, instead of October 31, 2007, at which point the Regulation will undergo a review. The Regulation sets out refunds to be provided by depot operators and retailers upon the return of an empty registered container. The revised Regulation is available at http://www.qp.gov.ab.ca/documents/Regs/1997_101.cfm?frm_isbn=9780779726172.

Too Good to Waste: Making Conservation a Priority: Alberta's Waste Reduction and Management Plan

Recycling Councils across Canada celebrated Waste Reduction Week from October 15^th to October 21^st. During this time, the Minister of the Environment, Rob Renner, announced a new long-term waste reduction and management strategy entitled Too Good to Waste: Making Conservation a Priority.

Three broad outcomes were identified in this waste management strategy:

1. Albertans take responsibility for resource conservation and waste minimization.
2. Waste management systems are integrated to provide the capacity for processing and/or recovery of materials that would otherwise be disposed of as wastes.
3. Facilities and practises to manage secondary materials and wastes are protective of air, land, water and human health.

The new Strategy will reduce material heading to landfills, helping to protect air, land, water and human health. The first action in the Strategy is a new paint stewardship program that will enable Albertans to recycle used or leftover paint. This paint program will come into effect April 1, 2008 and will include an environmental fee which will be used to fund things such as the cost of recycling the paint, educating consumers and operating the program.

Other actions outlined in the Strategy include a construction and demolition program, targeted disposal bans, and a paper and packaging program, aimed at significantly reducing the amount of waste sent to municipal landfills. Setting recovery targets for specific materials along with reliable reporting systems to allow for appropriate measurement, as well as revising existing legislation concerning waste management were identified actions. The beverage container recycling regulation is currently under review.

The Report is available at http://environment.gov.ab.ca/info/library/7822.pdf.

Cumulative, Regional Environmental Assessment

On October 2, 2007, Alberta Environment released a report entitled Towards Environmental Sustainability: Proposed Regulatory Framework for Managing Environmental Cumulative Effects. The intent of the new plan is to phase out individual project approvals that are currently based on generic standards, and instead replace it with an approval framework that assesses how a particular project interacts with shared regional objectives. The system is intended to better assess cumulative impacts of projects, through an approach that balances environmental, economic and social implications.

Implementation will be tested in three areas, including the Industrial Heartland north-west of Edmonton, an area in east central Alberta and one in southern Alberta. Initially, the system will not replace existing project regulatory requirements, but rather to enable other policy options including economic incentives, education and voluntary action to function alongside those requirements. The framework also includes cumulative airshed targets for NO_x and SO₂, along with commitments to ensure water quality and quantity and protection and reclamation of soil.

Consultation is currently taking place and interested parties may submit their comments by email to AENVsustain@gov.ab.ca until November 30, 2007. Read the full article.

Ground Water Protection Regulation

All wells other than geotechnical wells and drainage wells must have a secure well cap in place by October 31, 2007 to be in compliance with British Columbia's Ground Water Protection Regulation. Well caps are commercially available and can be installed by the qualified well pump installer or by the well owner. The well cap should be secured on the well at all times except when it is necessary to disinfect, or perform maintenance or repair work to the inside of the well or the well pump. The Regulation is available at http://www.qp.gov.bc.ca/statreg/reg/W/Water/Water299_2004/299_2004.htm.

Proposed Operation Plan for 2007-2009

The Joint Public Advisory Committee of the Commission for Environmental Cooperation ("CEC") is requesting public input on the CEC's proposed Operational Plan for 2007-2009 which described cooperative action to protect and enhance the North American environment. It is focused on continuing implementation of program priorities established by the CEC Council in the following areas: information for decision-making, capacity building and trade and environment. The deadline to provide written comments is November 24th. Additional information is available at http://www.cec.org/news/details/index.cfm?varlan=ENGLISH&ID=2733.

Taking Stock Report

The latest Taking Stock Report from the CEC reveals that a continued decline in releases of toxic chemicals to the environment (15 percent for the U.S. and Canada from 1998 to 2004) is being driven by a group of industrial facilities that are the largest generators of emissions. However, that progress is largely unmatched by small and medium-sized industrial facilities. The Report is available at http://www.cec.org/news/details/index.cfm?varlan=ENGLISH&ID=2779.

Draft Canada-wide Strategy for Managing Municipal Wastewater Effluent

The Canadian Council of Ministers of the Environment ("CCME") established a Development Committee to develop a Canada-wide strategy for the management of municipal wastewater effluent. The CCME is now seeking a final review of the Draft Strategy with stakeholders. Comments are welcome until January 31, 2008. At that time, CCME will consider any comments submitted by stakeholders prior to finalizing the Strategy and submitting it to ministers for approval. Additional information is available at http://www.ccme.ca/ourwork/water.html?category_id=81.

What's Happening

Jennifer Mesquita spoke on Nov. 19, 2007 on a panel at CanSIA's Solar Conference 2007 in relation to policy options to encourage the adoption of solar thermal technologies.

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The Gowlings Environmental Law Group will be presenting its all day annual environmental law conference on November 29, 2007. The theme for 2007 is Business and the Environment. In addition to providing a summary update on developments in Environmental Law over the past year, there will be presentations by panels of industry experts and Gowlings lawyers on topics such as creation and trading of greenhouse gas credits, intellectual property protection for environmental technologies, infrastructure and environmental technology financing, alternative energy financing and approvals, Brownfields, and environmental due diligence and corporate governance. Register now by clicking here.