FEDERAL NEWS

Turning the Corner - Canada's Draft Guide for Protocol Developers Released

On August 8, 2008, Environment Canada released its Guide for Protocol Developers (the "Guide") which provides guidance as to the requirements and processes involved in the completion of an Offset System Quantification Protocol ("OSQP"). OSQPs are to be developed to provide a standardized method of quantifying GHG reductions related to a particular type of offset project. Offset systems are one component of the federal government's plan, entitled Turning the Corner, to reduce greenhouse gas emissions. The Guide is open for a 60 day consultation period in which parties may provide feedback to the federal government on its proposed guide for protocol development.

The Guide is the first of three guidance documents which were promised for release this summer. It is to be followed by the Guide for Project Proponents and the Guide for Verification Bodies. These guidance documents will, along with the proposed greenhouse gas regulations, form the foundation of a domestic carbon market for Canada. The regulations are to be published later this year in the Canada Gazette for consultation, and the final regulations are to come into force on January 1, 2010.

For the full article written by Lisa Jamieson and Nicole Chen, and edited by Mark Madras and Patricia Leeson, please click here.

Turning the Corner - Credit for Early Action Program Launched

On June 29, 2008 the Government of Canada launched the first phase of Canada's Credit for Early Action Program. The program is designed to recognize facilities that have already made reductions in greenhouse gas emissions in advance of the legislative requirement to do so. A limited number of credits will be available to companies that took earl action to reduce greenhouse gases between 1992 and 2006 and that will likely find themselves subject to mandatory greenhouse gas reductions. Credits will be available for any of the following six greenhouse gases: carbon dioxide, methane, nitrous oxide, hydroflurocarbons, perflurocarbons, and sulphur hexaflouride.

This program will provide a one-time allocation of credits, up to a maximum of 15 megatonnes for the entire program. Early action applicants are required to have claims verified by a third-party.

Companies are now able to apply to the Program and have access to submission forms and guidance documents on the Credit for Early Action Website at: http://www.ec.gc.ca/cmap-cea/default.asp?lang=En&n=B148443A-1. Further information is also available from the members of Gowlings' Climate Change Group.

Update on the Regulatory Framework for Air Emissions

On March 10, the Government of Canada published details of the regulatory framework for its plan to tackle Climate Change. Documents posted to Environment Canada's website clarify how the Government will achieve the GHG emissions reductions that it set out in Turning the Corner on April 26, 2007.

Details of the regulatory framework are available at:
http://www.ec.gc.ca/default.asp?lang=En&n=75038EBC-1.

Status Report of the Commissioner of the Environment and Sustainable Development - March 2008

On March 6, the Commissioner of the Environment and Sustainable Development released his Status Report to the House of Commons. The Report assesses how well federal government departments and agencies implemented and/or addressed selected recommendations and findings from past reports. The recommendations reviewed fall under four broad categories: chemicals management, ecosystems, management tools and government commitments, and previous audits of responses to environmental petitions.

The Commissioner concludes that government departments and agencies achieved mixed progress. Satisfactory progress was achieved generally in the category of chemicals management, on insurance for nuclear operators, and on military dumpsites. Four success factors were present in each of these areas: realistic objectives, a strong commitment at senior levels, clear direction, and adequate resources.

Unsatisfactory progress was made on federal protected areas for wildlife, the protection of species at risk, control of aquatic invasive species, areas of concern in the Great Lakes Basin, international environmental agreements, strategic environmental assessment, greening government operations, and genetically engineered fish. The Commissioner was particularly concerned that departments and agencies performed strategic environmental assessments poorly when developing policy and program proposals. Many of the problems were rooted in the lack of commitment at senior levels.

Looking forward, the Commissioner recommends that the government develop an overall plan with objectives "that are specific and measurable, with targets and milestones" to ensure competent and coordinated responses to Canada's environmental challenges. The Commissioner suggests that environmental assessments and sustainable development strategies need to be changed to allow Canadians to anticipate new challenges and opportunities. The latter will be essential in our quest to achieve long-term sustainable development.

A copy of the full report is available at:
http://www.oag-bvg.gc.ca/internet/English/aud_ch_cesd_200803_00_e_30126.html.

Commissioner of the Environment and Sustainable Development Named

Effective May 5, 2008 Scott Vaughan becomes the Commissioner of the Environment and Sustainable Development. The Commissioner is responsible for monitoring federal government sustainable development strategies, overseeing the environmental petition process, and auditing federal environmental and sustainable development issues.

Mr. Vaughan has worked in the field of environmental economics for more than 20 years and has held a variety of international positions at the United Nations Environment Program and the Organization of American States in the areas of environmental protection, conservation and sustainable development.

New Fact Sheets about the Production of Biofuels, and Substances Subject to the Food and Drugs Act that may be Subject to the New Substances Notification Regulations (Chemicals and Polymers)

The Canadian Environmental Protection Act, 1999 (CEPA) empowers the government to assess the potential harm that new substances may cause to the environment and/or human health before they are imported or manufactured in Canada. New substances are substances that do not appear on the CEPA's Domestic Substance List.

Environment Canada issued two fact sheets for new substances that may be regulated under the New Substances Notification Regulations (Chemicals and Polymers) (NSNR).

The fact sheet about new substances used in the production of biofuel highlights that chemicals, biochemicals, polymers and biopolymers used in the following substances and activities may be subject to the NSNR:

• Enzymes used for biofuel production;
• Catalysts used for biofuel production;
• Hydrolysis of lignocellulosic biomass;
• Chemical hydrolysis;
• Enzymatic hydrolysis; and
• Cellulose accessing packages.

The fact sheet for substances subject to the Food and Drug Act (FDA) highlights that Schedule 2 of the CEPA does not exempt substances imported or manufactured for uses regulated by the FDA from the purview of the NSNR. Manufacturing or importing a new substance in any of the following applications, including for research and development, may therefore be subject the NSNR:

• Pharmaceutical active ingredients;
• Natural Health Products;
• Novel Foods;
• Cosmetics;
• Pharmaceutical excipients;
• Biologics;
• Food Additives;
• Personal Care Products;
• Veterinary Drug active ingredients;
• Veterinary Drug excipients;
• Medical Devices;
• Food Packaging; and
• Enzymes.

Both fact sheets are available at:
http://www.ec.gc.ca/CEPARegistry/regulations/detailReg.cfm?intReg=92.

Bill Introduced to Prevent Removal of Water in Bulk from Major Drainage Basins in Canada

On April 11, Bill C-535 entitled the Canada Water Preservation Act was introduced into the House of Commons for first reading. The purpose of the Act is to foster the sustainable use of Canada's water resources. In particular, the Act strives to achieve this goal by prohibiting the removal of water in bulk from major drainage basins in Canada to locations outside of the basins.

Under the Act, the "removal of water in bulk" includes removing water from the drainage basin in which it is located "by any means of diversion that includes a pipeline, canal, tunnel, aqueduct or channel, or by any other means of diversion by which more than 50,000 litres of water per day is removed."

Section 9 of Bill C-535 exempts certain activities from the purview of the prohibition of removing water in bulk, including the removal and subsequent inclusion of water in a manufactured product such as bottled water or other beverages placed in bottles or containers for commercial purposes.

Bill C-535 is available at:
http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3413472&file=4.

Canadian Nuclear Safety Commission Resumes Regulatory Oversight of Chalk River Nuclear Reactor

On December 12, 2007 the Government of Canada exempted the connections of heavy water pumps to the emergency power supply on Atomic Energy of Canada Limited's (AECL) National Research Universal reactor from regulatory control for a period of 120 days. The Government did so to ensure an adequate supply of nuclear substances generated by the reactor that are used for medical purposes.

On April 11, 2008, the Canadian Nuclear Safety Commission (CNSC) resumed full regulatory oversight of the reactor in Chalk River, Ontario. CNSC President Michael Binder reassured Canadians that "[t]he reactor is operating safely and CNCS and AECL staff have agreed on a way forward through more effective regulatory compliance to ensure that such a situation does not reoccur." Mr. Binder confirmed that the required upgrades are "fully operational".

More information is available at:
http://www.nuclearsafety.gc.ca/eng/newsroom/releases/news_release.cfm?news_release_id=306.

Perfluorooctane Sulfonate (PFOS) Added to the Virtual Elimination List

On April 17, the Perfluorooctane Sulfonate Act received Royal Assent. The Act requires the Ministers of Environment and Health to make a regulation to add perfluorooctane sulfonate and its salts to the Virtual Elimination List compiled under s. 65(2) of the Canadian Environmental Protection Act, 1999.

A copy is available at:
http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3437371&file=4.

Government of Canada Regulates Smog-Producing Chemicals

On April 26, the Government of Canada published three proposed regulations that establish new emissions standards for smog-producing chemicals. The regulations specifically target volatile organic compounds ("VOCs") that are found in everyday products. VOCs are the second largest contributor to smog in Canada.

The proposed regulations target three specific areas by:

1. Introducing concentration limits of VOCs in 98 categories of consumer products;
2. Establishing concentration limits for 49 categories of architectural coatings such as paints, stains, and varnishes; and
3. Establishing concentration limits for 14 categories of coatings and surface cleaners.

The Volatile Organic Compound (VOC) Concentration Limits for Certain Products Regulations, the Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations, and the Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations are available at:
http://gazetteducanada.gc.ca/partI/2008/20080426/pdf/g1-14217.pdf.

Air Quality Alert System Expanded to the Greater Toronto Area

The Air Quality Health Index has been expanded to six communities in the GTA. The online index provides real time information on the quality of air in the areas covered. The project is supported jointly by the Governments of Canada and Ontario, along with Toronto Public Health. In July 2007, the Federal Government announced the 18-month pilot project for Toronto. The June 6, 2008 announcement expanding the program is a sign of the intention to also rollout out the Index to other mid and large-sized communities across the country. A similar program has already moved from a pilot project to full implementation in British Columbia, where 14 communities across the province have access to up-to-date air quality information.

More information can be found at www.airhealth.ca.

Government of Canada Signs Environmental Cooperation Agreement with Atlantic Provinces

The agreement signed by Environment Minister John Baird and the Ministers for the Environment for Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland contains a broad set of environmental management principles of cooperation and aims to foster a relationship that will lead to specific multilateral and bilateral agreements. The agreement will:

• create a regional steering committee of senior officials from Environment Canada and the environment departments in the Atlantic provinces, which will allow for easier and more effective discussion and collaboration on environmental issues;
• facilitate a consistent, efficient and transparent collaborative approach to environmental protection and conservation in the Atlantic provinces;
• strengthen federal/provincial co-operation to address a national environmental priority in an integrated and coordinated way; and
• provide the foundation for federal/provincial co-operation to address a broad spectrum of environmental priorities and could pave the way for other more detailed multilateral or bilateral agreements.

For more information, please see:
http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=5636DF06-FAF9-4A10-8119-C032C6625B7F

NEWS FROM THE PROVINCES

British Columbia:

British Columbia's Climate Change Strategy Comes Into Focus

• B.C. to Implement Cap and Trade Program
  

  Greenhouse Gas Reduction (Cap and Trade) Act (CATA) received Royal Assent on May 29, 2008. As of September 15, 2008, it has not yet come into force. When the CATA comes into force, it will form part of the Western Climate Initiative (WCI) cap and trade regulatory systems that establish an overall "cap" or limit on emissions on the one hand, while the "trade" portion of the system allows regulated emitters to buy and sell emissions allowances or buy offset units on the other.

  Under the CATA, the B.C. government will establish the cap for designated large emitters by issuing a limited number of tradable compliance units (emissions allowances) for given periods of time (compliance periods). Each designated emitter will then be required to obtain a number of compliance units equivalent to the amount of regulated greenhouse gas emissions it releases within the specified compliance period. These units must then be surrendered to the government as proof of compliance.

  The CATA identifies three different kinds of compliance units: (1) B.C. Allowance Units (issued by the government according to the cap specified in a given compliance period); (2) B.C. Emissions Reduction Units (offset credits from approved emission reduction or removal projects in B.C.); and (3) Recognized Compliance Units from other cap and trade systems, such as those established by the WCI.

  Administrative penalties will apply as an automatic consequence of non-compliance.

  For more information, please see the original News Release:
  http://www2.news.gov.bc.ca/news_releases_2005-2009/2008ENV0035-000462.htm

• B.C. Establishes Carbon Tax
  

  British Columbia has begun the phase in of a carbon tax, which will be offset by tax cuts in other areas to be revenue-neutral. The tax is broad-based, applying to virtually all fossil fuels. The tax will be phased in, starting at a rate based on $10 per tonne of associated carbon, or carbon-equivalent, rising by $5 per year for the next four years.

  The Carbon Tax Act (CTA) received Royal Assent on May 29, 2008. Part of the CTA came into force by operation of the Consular Tax Exemption Regulation (B.C. Reg. 127/2008, effective July 1, 2008), while the majority of the provisions were implemented by the Carbon Tax Regulation, which was approved and ordered by the Lieutenant Governor on June 6, 2008 and came into effect on July 1, 2008.

  The CTA imposes taxes on fuel, based on its carbon content. As of July 1, 2008, carbon tax applies to fuels, such as gasoline, diesel, natural gas, heating fuel, propane and coal, and to peat and tires when used to produce energy or heat.

  For more information, please see:
  http://www.sbr.gov.bc.ca/business/Consumer_taxes/ Carbon_Tax/carbon_tax.htm or
  http://www.bcbudget.gov.bc.ca/2008/backgrounders/ backgrounder_carbon_tax.htm

• B.C. Introduces Renewable and Low Carbon Fuel Requirements
  

  The Greenhouse Gas Reduction (Renewable and Low Carbon Fuel Requirements) Act (RLCFRA) received Royal Assent on May 1, 2008. As of the date of publication, this regulation has not yet come into force.

  The RLCFRA creates a regulatory framework that enables the Province to set benchmarks for the amount of renewable fuel in B.C.'s transportation fuel blends, reduce the carbon intensity of transportation fuels and meet its commitment to adopt a low-carbon fuel standard similar to that of the state of California. RLCFRA sets requirements for renewable fuel content in gasoline, diesel as well as reduced carbon intensity level which fuel suppliers must comply with.

  Under the RLCFRA, administrative penalties will automatically apply in cases of non-compliance.

  For more information, please see:
  http://www2.news.gov.bc.ca/news_releases_2005-2009/2008EMPR0022-000453.htm

• B.C. Regulates Waste Management and Electricity Generation Facilities While Opening Opportunities to the Bio-Energy Sector
  

  The Greenhouse Gas Reduction (Emissions Standards) Statutes Act makes amendments to both the Environmental Management Act (EMA) and the Forest Act and Forest and Range Practices Act. The amendments are intended to reduce the greenhouse gas (GHG) emissions of specific industries and to promote recovery of energy from specified GHGs and the production of bioenergy derived from Crown timber.

  Some industries which operate under the Environmental Management Act (EMA), such as waste management facilities and electricity generation facilities will be required to capture, reduce, or sequester GHGs, and in some cases offset all GHG emissions to become "net zero". Where possible, they may have the option of tapping into the energy-generation potential of specified GHG emissions. Failure to comply with the new legislation may result in fines of up to $1 million or imprisonment for a term of up to six months, or both, as well as administrative penalties to enforce the offset provisions pertaining to electricity generation facilities.

  Amendments to the Forest Act and Forest and Range Practices Act include provisions which encourage the use of wood residue as a source of "bioenergy", allow access to unwanted timber left at the roadside or landing, and which amend scaling requirements to facilitate the measurement of wood chips and other materials. The amendments also encourage the harvesting of beetle-attacked timber. The Government will also have the authority to enter into a forest licence with the successful applicant of a BC Hydro call for power.

  For more information see:
  http://www2.news.gov.bc.ca/news_releases_2005-2009/2008ENV0041-000560.htm

• B.C. Introduces new Greenhouse Gas-Reducing Vehicle Emission Standards

  The Greenhouse Gas Reduction (Vehicle Emissions Standards) Act (VESA) passed third reading on May 21, 2008, and will be brought into force by the Lieutenant Governor in Council. The purpose of the Act is to reduce greenhouse gas ("GHG") emissions by 30% from 2007 levels, resulting in a reduction of 600,000 tonnes of GHG emissions annually by 2016.

  Under the VESA, automakers' vehicle fleets for a model year must not exceed the fleet average GHG emission standards set by the regulations. Manufacturers can lower their fleet average GHG emissions by selling more low emission vehicles, but can continue to sell high emission vehicles so long as the fleet average GHG emissions do not exceed the set standards. If the fleet average exceeds the standards, then manufacturers must apply credits to match the amount by which the fleet average GHG emissions exceed the applicable standards. The credit system will be established by future regulations, but is expected to award credits to manufacturers whose fleet average GHG emissions are below the emission standards in a prior year. The VESA also allows for regulations which may require some manufacturers to include Zero Emission Vehicles ("ZEVs") in its vehicle fleets in the future, or to apply credits to achieve equivalence to the ZEV requirements.

  Auto manufacturers will be required to submit reports to the government in accordance with the regulations, such as providing the average GHG emissions of the vehicle fleet to show compliance with the VESA. Any trade secrets or protected information required by the VESA and regulations will not be disclosed by the government, but model year reports in relation to fleet emissions and compliance reports in relation to fleet emission standards may be made public. Failure to comply with the VESA or providing false or misleading information required by the VESA can lead to administrative penalties, fines, and imprisonment.

  For more information see:
  http://www2.news.gov.bc.ca/news_releases_2005-2009/2008ENV0049-000653.htm

Proposed Bill Seeks to Consolidate the Powers and Duties of the Oil and Gas Commission and the Rights and Obligations of Persons Carrying Out an Oil and Gas Activity in B.C. Into a Single Act

The Oil and Gas Activities Act passed third reading in the provincial legislature on May 29, 2008, and is expected to come into force in 2009. It consolidates the Oil and Gas Commission Act, the Petroleum and Natural Gas Act, and the Pipeline Act, and makes numerous transitional amendments to each in accordance with its objectives, some of which are now in force. The Minister of Energy, Mines and Petroleum Resources outlined the objectives of the Oil and Gas Activities Act (British Columbia) before the Legislative Assembly on April 15, 2008 as follows:

• consolidate oil and gas regulatory requirements and transfers the regulatory responsibility in the Geothermal Resources Act (British Columbia) to the Oil and Gas Commission;
• improve the permitting processes;
• improve environmental regulations;
• encourage innovation;
• enhance compliance and enforcement powers, including applying them to all oil and gas activities approved by the Oil and Gas Commission;
• enable the Oil and Gas Commission to consider an operator's past compliance history when making any new decisions;
• enhance the Oil and Gas Commission's powers to respond to stakeholders' concerns; and
• create a new appeals process applicable to decisions by the Oil and Gas Commission.

On June 26, 2008, the Lieutenant Governor in Council passed an Order in Council bringing into force several of the transitional amendments to the Petroleum and Natural Gas Act (British Columbia). Of particular note, certain sections of the Petroleum and Natural Gas Act (British Columbia) now apply to water produced in relation to the production of petroleum or natural gas, waste or any other prescribed substance, in addition to petroleum and natural gas, and to storage or disposal operations in addition to production operations. Other amendments include:

• a new definition of "licence" to mean a drilling or geophysical licence; a licence to develop or use a storage reservoir; or a licence to explore for a storage reservoir obtained under the Act;
• amending the definition of "storage reservoir" and adding the term "storage well" to include the disposal, storage and recovery of water produced in relation to the production of petroleum or natural gas, waste or any other prescribed substance, in addition to petroleum and natural gas, or a well capable of being as a storage reservoir;
• redefining a "well" to which the Act applies to mean a hole in the ground drilled, made, or used in relation to petroleum or natural gas including a water source well; and
• setting certain licensing, leasehold, and ownership requirements to drill for wells, to drill for and produce petroleum or natural gas or both, or drilling for a storage reservoir.

More Regulated Recyclable Products

On April 24, 2008, Environment Minister Barry Penner announced that the Government of British Columbia intends to add mercury-containing products such as light bulbs and thermostats to the provincial Recycling Regulation. The Government also plans to expand the list of recyclable products beyond televisions, computers, laptops, monitors, keyboards, printers and computer periphery, to include products such as stereos, cell phones and other hand-held devices.

Under British Columbia's Recycling Regulation, industry is responsible for collecting and recycling any regulated products it manufactures or sells. Manufacturers are expected to develop and implement product stewardship plans to comply with the amended Recycling Regulation for public consultation and further development by 2009. There are currently nine industry groups in British Columbia that operate recycling programs.

For more information see:
http://www.env.gov.bc.ca/epd/recycling/pdf/news_release_24apr08.pdf, and
http://www.env.gov.bc.ca/epd/recycling/

Ontario:

New Regulations Requiring Landfill Gas Collection

Ontario Regulations 217/08 and 216/08 require landfill gas collection systems for operating, new or expanding landfills larger than 1.5 cubic meters total waste disposal volume. Amendments were made to O. Reg 232/98 (Landfilling Sites) and Regulation 347 (General - Waste Management).

For an operating site, landfill owners and operators must submit design reports by June 30, 2009. The requirement to have facilities in completed or interim completed site areas are required to be installed and operating by December 31, 2010. These requirements will be part of the Certificate of Approval or Provisional Certificate of approval for new or expanding sites.

The regulations do not impose any additional obligations on closed landfills, landfills associated with forest products operations or landfills if the only waste landfilled at the site is coal ash. The Regulations also allow proponents to show gas facilities are not needed by showing that landfill gas is not a significant concern at the site.

http://www.e-laws.gov.on.ca/html/source/regs/english/2008/elaws_src_regs_r08217_e.htm or
http://www.e-laws.gov.on.ca/html/source/regs/english/2008/elaws_src_regs_r08216_e.htm

Regulation to Accelerate Environmental Assessments for Public Transit Projects.

The Transit Projects Regulation has been made under the Environmental Assessment Act and filed with the Register for Regulations as Ontario Regulation 231/08. The regulation under the Environmental Assessment Act streamlines environmental assessments (EAs) for public transit projects. EAs conducted pursuant to the Regulation could be completed within a 6-month period. The Regulation applies to all proponents of public transit projects, including GO Transit, municipalities, and the Ministry of Transportation.

Certain elements of the existing framework are integral components of the EA process for public transit projects. These elements include engaging in public consultation, assessing the potential negative effects of a proposed project on the environment, and identifying appropriate mitigation measures. The streamlined EA process for public transit projects will commence after the proponent has already selected the preferred project. The EA will not focus, inter alia, on the rationale supporting the choice of the project, or alternatives thereto.

The Regulation implements the following timeline for the streamlined EA process: consultation and completion of documentation (4 months); final public and agency review of documents and submissions of objections (1 month); and government decision-making, if required, (35 days).

For further information: see Ontario Regulation 231/08 at:

http://www.e-laws.gov.on.ca/html/source/regs/english/2008/elaws_src_regs_r08231_e.htm or
http://www.gov.on.ca/GOPSP/en/graphics/247852.pdf

Cosmetic Pesticides Ban Act Introduced for First Reading

On April 22, Bill 64 entitled the Cosmetic Pesticides Ban Act was introduced for first reading. Bill 64 moved rapidly through the legislative process, and received Royal Assent on June 18^th, 2008.

The Cosmetic Pesticides Ban Act amends the Pesticides Act, prohibiting the use and sale of certain pesticides used for non-essential or "cosmetic" purposes. Subsequent regulations will prescribe the pesticides to which the prohibition applies. Certain uses of pesticides are, however, exempted under the Act. Section 7(2) exempts the following uses of pesticides:

1. Uses related to golf courses, if any prescribed conditions have been met;
2. Uses related to agriculture;
3. Uses related to forestry;
4. Uses related to the promotion of public health or safety; and
5. Other prescribed uses, if any prescribed conditions have been met.

The Act also prohibits persons from selling, offering to sell, or transferring a prescribed pesticide.

Bill 64 is available at:
http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=1967&detailPage=bills_detail_the_bill.

New Regulations under the Waste Diversion Act

Three new regulations came into force under the Waste Diversion Act in March. The new regulations designate Stewardship Ontario "as the industry funding organization for the waste diversion program for municipal hazardous or special waste." The regulations also provide for both the continuance of Stewardship Ontario and the rules governing its composition, including its appointed and elected members.

Ontario Regulations 28/08, 33/08, and 34/08 are available in the Ontario Gazette at http://www.gov.on.ca/GOPSP/en/graphics/199540.pdf.

Regulation under the Ontario Water Resources Act to Protect Lake Simcoe

On March 27, the Ministry of Environment adopted Ontario Regulation 60/08 under the Ontario Water Resources Act to protect the Lake Simcoe Basin. The Regulation governs discharges from point sources in the Basin in the three important ways. The Regulation:

1. Limits total phosphorus loadings from existing municipal and industrial sewage treatment plants within the Basin. This will result in a reduction in permitted phosphorus loading of 5.2 tonnes / year;
2. Prohibits the establishment of new sewage treatment plants in the Basin; and
3. Imposes stringent design standards on new storm water facilities that service new developments located in the Basin.

The Regulation will apply on an interim basis from April 1, 2008 to March 31, 2009.

The Regulation is available at:
http://www.e-laws.gov.on.ca/html/source/regs/english/2008/elaws_src_regs_r08060_e.htm.

Ministry of Health and Long-Term Care to Take Oversight Responsibility of Five Categories of Small Drinking-Water Systems

The Ministry of Environment decided to move forward with the process of transferring oversight responsibility over five categories of non-residential and seasonal drinking water systems to the Ministry of Health and Long-Term Care. The transfer is provided for under Schedule D of the Health System Improvements Act, 2007. The Act received Royal Assent on June 4, 2007, but Schedule D has not yet been proclaimed. Schedule D requires regulations to be in place regulating small drinking-water systems in order to take effect.

The proposed transitional and permanent regulations are available at http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTAzMjg3&statusId=MTU0MzMw&language=en.

Quebec:

New Tariff for Environmental Authorizations and Permits

The Québec Environment Quality Act (EQA) provides for the obligation to obtain in designated cases, a certificate of authorization, an authorization, an approval, a permit, an attestation or a permission. Section 31.0.1 of the EQA empowers the Minister of Sustainable Development, Environment and Parks to determine by decree the fees required to be paid in connection with the issue, renewal or amendment of these environmental authorizations and permits. The Minister may also fix the terms and conditions of payment of these fees and may vary them according to the nature, scope or cost of the project, the class of source of contamination, the characteristics of the enterprise or establishment, in particular its size, or the complexity of the technical and environmental aspects of the file.

The Order respecting the fees payable under the Environment Quality Act was published on May 14, 2008 in the Gazette officielle du Québec and the date of coming into force of the fees is June 1, 2008. The Order applies to any enterprises, ministries and organisms, municipalities or individuals seeking a certificate of authorization, an approval, an attestation or a permission or any renewal or amendment thereof. The revenues generated by the fees set by the tariff will be deposited in the Green Fund in order to be used by the Ministry of Sustainable Development, Environment and Parks for financing environmental measures, activities or programs.

According to the tariff, and depending on the nature of a project, fees of between $500 and $5,000 will be required when processing an application for a certificate of authorization pursuant to section 22 of the EQA. Additional costs can also be required if the project is subject to the determination of environmental emission or discharge objectives due to contaminants being emitted into the atmosphere or process water being discharged into the environment. The transfer of a certificate of authorization will be subject to the payment of a fee of $500. The approval of a rehabilitation plan required pursuant to the land protection and rehabilitation provisions of the EQA will be subject to the payment of fees of between $1,000 and $8,000 depending on if the plan relates to a simple dig and dump project, an in-situ treatment project or a project proposing a toxicological or ecotoxicological risk assessment and groundwater impact assessment. Projects submitted to the environmental impact assessment and review procedure will have to factor fees of between of $1,000 and $120,000 depending again on the nature of the project.

Through the adoption of this tariff, Québec has joined other provinces that already have a similar scheme based on the notion of "user-pay". The tariff can be consulted (in French only) at:
http://www.mddep.gouv.qc.ca/ministere/tarification/index.htm

Regulation to Prohibit the Sale of Certain Dishwashing Detergents

On May 28, 2008 Quebec made the Regulation to prohibit the sale of certain dishwashing detergents. The Regulation came into force on June 26, 2008. The Regulation states that as of July 1, 2010 no dishwashing detergents may be offered for sale, sold, distributed or otherwise made available to consumers in Québec if they contain a percentage of phosphorus that exceeds the prescribed standard, which is 0.5 % or more phosphorus by weight, and (the English version uses "or"; we anticipated that an erratum will be published by the Government) if the package does not indicate the phosphorus content of the product. The failure to comply with the requirements set forth in the Regulation constitutes an offence and can give rise to a fine, in the case of a corporation, of between $6,000 to $120,000 for a first offence and $12,000 to $240,000 for any subsequent offence.

IN THE COURTS

Court Orders Defendants to Cease Using Outdoor Wood-Fired Boiler (OWB) at their Rural Home in Ontario

On the basis of a claim for private nuisance, the Plaintiffs brought a motion for an interlocutory injunction ordering the Defendants to cease using a wood-fired boiler (OWB) at their property in Uxbridge, Ontario.

The Plaintiffs and Defendants live in predominantly rural area. The Defendants bought the OWB in the fall of 2006 for a cost of about $13,400, and installed the unit in their backyard. The Plaintiffs claimed to have suffered from inhaling smoke originating from the OWB on the Defendants' property.

On March 17, Justice Graham of the Ontario Superior Court of Justice allowed the motion, holding that the Plaintiffs established that there was a serious issue to be tried, that the Plaintiffs would suffer irreparable harm if the injunction was not granted, and that the balance of convenience favoured the Plaintiffs. The serious issue to be tried involved the negative health effects caused by the smoke, the frequency and severity of the smoke originating from the Defendants' property, and the lack of alternatives means for the Defendants to heat their home. The Plaintiffs would suffer irreparable harm if the injunction was not granted because the smoke caused a real risk and / or actual harm to the Plaintiffs' health, which continued to be caused on an ongoing basis. Finally, the balance of convenience favoured the Plaintiffs because the harm caused by the injunction to the Defendants was minimal relative to the harm that the Plaintiffs would continue to suffer if the motion was not granted.

The full decision of Scott v. Pike, [2008] O.J. No. 948 is available at http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Ontario&path=/en/on/onsc/doc/2008/ 2008canlii11044/2008canlii11044.html.

Ontario Divisional Court Confirms Statement of Environmental Values Must Be Considered in Approving Environmental Instruments.

On June 18, 2008 the Ontario Divisional Court handed down a landmark decision regarding the requirements of the Director to consider and apply provincial policy statements when making decision on environmental permits and approvals.

In response to an application, pursuant to the Environmental Bill of Rights, seeking leave to appeal the decision of the Director to issue a Certificate of Approval, the Environmental Review Tribunal granted leave to appeal on the basis that the decision of the Director did not take into account relevant policy and other considerations that were required by law. The judicial review application brought by Lafarge Canada brought sought to overturn the decision of the Tribunal. On judicial review, the Divisional Court found that the Environmental Review Tribunal had acted reasonably in allowing leave to appeal in this case and agreed with the precedent-setting findings of the tribunal.

The Court agreed with the Tribunal that there was good reason to believe that no reasonable person could have made the decision to issue the Certificate of Approval and found that the Tribunal correctly concluded that there was a failure by the Director to consider or apply the relevant policies and the guiding principles in the Ministry Statement of Environmental Values (SEV). The Court explained that the SEV endorses an ecosystem approach which necessarily includes an assessment of cumulative effects of emissions upon ecosystems. The Court also found that the Ministry must exercise the precautionary approach to decision making in the face of uncertainty and must exercise caution in favour of the environment.

The Court found it was reasonable for the Tribunal to have regarded the SEV as relevant policy which should guide the decisions of the Director as mandated in the Environmental Bill of Rights (EBR). The EBR requires the Minister to take "every reasonable step to ensure that the Ministry SEV is considered whenever decisions that might significantly affect the environment are made in the Ministry. There is no exclusion for Directors when they are making a decision whether or not to implement a proposal for a Class I or a Class II instrument." This decision also comments on the need to consider the potential effect on the common law rights of landowners and the desire for consistent decision making throughout the province.

This case may result in major changes to the Ministry of Environment's approach to environmental decision making and create unpredictable results for many projects. Lafarge has announced that it will seek leave to appeal the decision to the Court of Appeal.

To view the decision please see:
http://www.canlii.org/en/on/onscdc/doc/2008/2008canlii16196/2008canlii16196.pdf

OTHER ORGANIZATIONS

Commission for Environmental Cooperation Report Highlights Green Buildings as an Opportunity for Biggest, Easiest Cuts in North American CO₂ Emissions

The Commission for Environmental Cooperation [CEC] was established by Canada, Mexico, and the United States to build cooperation between the three countries in implementing the North American Agreement on Environmental Cooperation. The CEC's mandate is to examine the environmental opportunities and challenges that arise as a result of free trade in North America.

On March 13, the CEC tabled a report entitled Green Building in North America: Opportunities and Challenges. The Report is the result of a two-year study prepared by the CEC Secretariat with advice from an international advisory group of prominent developers and architects, sustainability and energy experts, real estate appraisers and brokers, as well as local and national governmental representatives.

The Report provides a blueprint for achieving relatively rapid and inexpensive GHG reductions. The blueprint relies mainly on existing technology, and promotes "green design, construction, renovation and operation of buildings" in North America.

The Report calls on governments, industry and NGO leaders to:

• Create national, multi-stakeholder task forces charged with achieving a vision for green building in North America;
• Support the creation of a North American set of principles and planning tools for green building;
• Set clear targets to achieve the most rapid possible adoption of green building in North America, including aggressive targets for carbon-neutral or net zero-energy buildings, together with performance monitoring to track progress towards these targets;
• Enhance ongoing or new support for green building, including efforts to promote private sector investment and proper valuation methods; and
• Increase knowledge of green building through research and development, capacity building, and the use of labels and disclosures on green building performance.

The Report is available at http://www.cec.org/files/PDF//GB_Report_EN.pdf.

What's Happening

Gowlings' Toronto Environmental Group Hike on the Oak Ridges Moraine

On September 26, 2008, Gowlings Toronto Environmental Group is hosting a hike for our clients on the Oak Ridges Moraine Trail followed by an afternoon of events including a tour of the art studios of well known artists Ed Bartram and Marianne Broome, as well as a tour of Pine Farms Orchard located in the heart of the Moraine.

For further information, please contact any member of the Toronto Environmental Law Group or Meagan at meagan.sheehan@gowlings.com or click here for online registration (cost is complimentary).

The Essentials of Occupational Health, Safety & Environmental Law in Canada

Now, more than ever, companies must ensure that they comply with environmental legislation. Failure to do so could have dire consequences, including business disruption, steep fines or even jail time.

This course, taught by lawyers from Gowlings' internationally recognized Environmental Law Group, will provide an overview of federal and provincial environmental law and will identify potential components of a sound due diligence system. Specific topics to be covered include:

• A synopsis of federal and respective provincial environmental legislation, including the regulation of toxic substances, environmental assessments, air and water pollution, waste management, contaminated land, and climate change
• What you need to know about Ontario's Bill 133, the most significant reform to the province's environmental law in a generation, including: new administrative penalties for environmental infractions, new requirements for spill prevention and spill contingency plans, amendments to the structure and application of penalties imposed upon conviction of an offence, and new duties for officers and directors
• What to do when an environmental inspector or investigator drops by
• Trends in enforcement and prosecution
• An examination of the due diligence defence to environmental charges: what legislation and courts say
• Strategies for achieving environmental due diligence
• Commentary on recent trends in environmental law and the potential implications for individuals and industry

Dates

• Thursday, September 25, 2008 - Calgary, AB
• Wednesday, November 5, 2008 - Toronto, ON

For more information, please visit
http://www.gowlings.com/ohslaw/courses/environment.asp

Presentations on Climate Change

Laura Zizzo, an associate with the Environmental Law Group in Gowlings' Toronto office, was trained by Nobel Laureate Al Gore and The Climate Project Canada to be an official volunteer presenter of an updated version of the slide show that forms the basis for the Oscar award winning film, An Inconvenient Truth. The slide show is aimed to educate and spread awareness about climate change. Laura attended the training session from April 4-7 2008 in Montréal and is part of a select group from across Canada available to give the official presentation. For more information or to request a presentation please go to www.climateprojectcanada.org.

Hot Properties: Canadian Brownfields, 2008

The Canadian Urban Institute, Canadian Brownfields Network, and The National Executive Forum on Public Property present Hot Properties: Canadian Brownfields, 2008 from October 22-24, 2008 at the Toronto Congress Centre. Gowlings is a proud sponsor of this event. Harry Dahme will once again chair the Cross Country Check Up panel, which will discuss legislative and government policy developments related to Brownfields across Canada over the last year.

For more information, please go to www.canadianbrownfields.ca.

Environmental Law for Business, 2008

November 20, 2008 is the date for Gowlings' annual Environmental Law for Business conference. In addition to providing an update on changes to environmental laws over the last year, speakers will provide insight into new developments in related areas.

For more information, please contact: Nory Paredes at:
nory.paredes@gowlings.com or (416) 862-5746.

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