Download Newsletter March April 2010

March / April 2010
Ontario to streamline Certificate of Approval process
In this issue ...
The Ontario Ministry of the Environment says it will be easier to apply for and
obtain environmental approvals using its proposed risk-based approvals model.
To be introduced over the next two years, the model will focus approvals
resources on activities that pose the greatest risk to the environment and on
businesses with poor compliance records.
MOE issues model for
streamlining its C of A
process ……………………..1
MOE says that the approvals modernization process should also,
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allow for single-site, multi-media permits and single, multi-site approvals
provide service delivery standards and online tools to support governmentto-business interaction in the approvals processes
improve public transparency through improved reporting and an online
public information website to access approvals related information
Under the streamlined approach, eligible activities would be registered with the
Ministry and would bypass the C of A requirements. Although MOE is not
calling it “permit by rule”, that is the proposal. Facilities would be required to
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Consultation and hunting
rights stalls coal mine ……. 2
Ontario makes consumers
pay for conservation ……... 2
Ottawa drafts minimum
national standards for
municipal wastewater
effluents …………………... 3
Solar projects dominate list
of OPA’s FIT contracts ….. 4
Ontario Budget promises
new push to commercialize
water sector ………………. 4
Feds propose tailpipe
standards to cut greenhouse
gases ……………………... 5
New hazwaste and land
disposal manuals ………... 7
EBR updated …………….. 7
Ottawa & BC to negotiate
equivalency agreement on
climate change …………… 7
register with MOE, operate according to rules established in regulation, and
certify to MOE compliance with these rules on a regular basis. Regulated
operations would be subject to audit by the Ministry.
The posting does not contain any significant changes for processing of
application for activities not eligible for permit by rule. Strikingly absent is any
mention of the MOE’s obligation to consider cumulative effects. We have not
seen any proposals that MOE will issue Cs of A based on the detailed technical
review of the documentation submitted by the applicant and results of any
public input. Nothing new here.
Processing of submissions under both the Registry and C of A processes is to
be modernized via a one-window, online system. Business will be able to log
on to access their “account”, submit information, track the status and remit fees
related to their applications.
The streamlined system should help the Ministry process the more than 6,000
requests for Cs of A it receives each year. The proposal was posted on the
Environmental Registry March 2, 2010, with a deadline for public comment of
April 16, 2010. The Ministry expects to begin introducing changes to the
environmental approvals system by September 2012. We do not anticipate
major changes to legislation. As is usually the case nowadays, the devil will be
in the detail of the comprehensive regulatory and policy decisions.
Need for meaningful consultation stalls BC coal mine
A small First Nations band has thrown up a temporary legal roadblock to a
proposed coal mining project by First Coal Corporation planned for the
Chetwynd area of central British Columbia. The West Moberly First Nations
argued in the province’s Supreme Court that the proposed development
threatened the survival of the endangered Burnt Pine caribou herd in the band’s
traditional hunting territories. B.C. Supreme Court Justice Paul Williamson
noted that there is currently no plan in place for the protection and rehabilitation
of the Burnt Pine herd, which is a “failure to accommodate reasonably.” He
ordered the Crown to “proceed expeditiously” to put a protection plan in place.
The Court also ruled that the Crown had failed to engage in meaningful
consultation, as required under their 1899 Treaty No. 8 that guaranteed the
West Moberly hunting rights in the area. The Court ordered a 90-day stay to
further exploration and development activity while such consultation takes
place.
Ontario funds conservation with levy on electricity consumers
Ontario will require energy consumers to directly subsidize energy conservation
programs in the province. New O. Reg. 66/10, Assessments for Ministry of
Energy and Infrastructure Conservation and Renewable Energy Program
Costs, made under the Ontario Energy Board Act, 1998, was published in the
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March 27th issue of the Ontario Gazette. The phantom regulation had been
posted on and then disappeared from the province’s e-Laws website earlier that
week, sparking some derision in the Legislature. Countering claims that the
regulation imposes a "backdoor energy tax" on homeowners’ energy bills,
Energy Minister Brad Duguid explained that the estimated $53.7 million to be
raised (approximately $4 per year for the average consumer) will be used to
undertake energy audits, subsidize retrofits and help industrial and commercial
firms switch to solar power. The regulation sets forth the formula to be used by
the Ontario Energy Board in apportioning the government’s conservationrelated costs and expenditures among the Independent Electricity System
Operator (IESO) and those distributors licensed under Part V of the Act.
Distributors have until July 30, 2010, to recover the required cash “from
persons to whom it distributes electricity in its service area”.
Ottawa releases draft wastewater regulations
Deleterious Substance
National
In 2009, the Canadian Council of Ministers of the Environment
Standard
(CCME) endorsed a Canada-wide Strategy for the Management
of Municipal Wastewater Effluent (see the full story in the
Average carbonaceous
≤ 25 mg/L
May/June 2009 issue of our newsletter). To implement the
biochemical oxygen demand
CCME Strategy, the federal government has proposed
regulations under the Fisheries Act to adopt minimum national
Average concentration of
≤ 25 mg/L
effluent quality standards. The standards are achievable through suspended solids
normal secondary wastewater treatment. Standards would apply
to any wastewater system with a daily discharge capacity of
Average concentration of total
≤ 0.02 mg/L
10 m3 or more (but would not apply to facilities located in the
residual chlorine
NWT, Nunavut, or north of the 54th parallel in Quebec and
Newfoundland-Labrador). In addition to the standards, the
Maximum concentration of un
< 1.25 mg/L *
-ionized ammonia
proposed regulations require monitoring, record keeping and
reporting of the discharge of the designated “deleterious
substances” (i.e., BOD, suspended solids, total residual chlorine
* expressed as nitrogen (N), at 15°C ± 1°C
and un-ionized ammonia). The standards would be phased in over
three years and non-complying facilities could apply for a transitional
authorization that could give them another 10-30 years to meet the
standards (depending on the environmental risk a facility poses).
The total costs of compliance are estimated at $5.9 billion, the bulk
of which would be borne by the municipalities, which own and operate
most treatment plants. The draft Wastewater Systems Effluent
Regulations were published in the Canada Gazette, Part I on March 20,
with a deadline for public comment of May 19, 2010.
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OPA issues the first FIT contracts for renewable projects
Ontario Power Authority (OPA) has issued 694 contracts under the
province’s Feed-In Tariff (FIT) program, providing stable,
guaranteed pricing to renewable energy producers. These projects
are “capacity allocation exempt”, meaning that they can be
developed without significant impact on the transmission or
distribution systems through an expedited connection process. The
first batch of 510 contracts for mid-scale (10-500 kW) projects was
announced on March 10, 2010, and the second batch of 184 largescale (over 500 kW) projects on April 8. The OPA had received
956 eligible applications for the first round of capacity allocation
exempt FIT contracts and gave priority to the most viable and
“shovel-ready” projects.
The approved FIT projects will supply 2,535 MW of power, enough
to power some 600,000 homes. The successful proponents include
farmers, municipalities, local distribution companies, commercial
businesses, industrial customers, schools and hospitals, a winery
and even a church. Thirty-six community and aboriginal projects,
generating a total of 120 MW, will receive a first round FIT contract.
The full list of approved proponents is available on the OPA website.
About 80 percent of the approved projects are for solar generation;
the remaining contracts cover biogas, water, on and off-shore wind,
landfill gas and biomass projects. Economically viable projects that
do not receive contracts in this round of approvals will be considered
when more transmission capacity is available.
Approved FIT
Projects
#
Capacity
(MW)
Rooftop solar
477
103
Ground-mounted
solar
82
653
Water
50
193
On-shore wind
50
1230
Biogas
27
22
Landfill gas
4
15
Biomass
3
19
Off-shore wind
1
300
694
2535
Total
As of April 6, 2010, OPA has also issued almost 3,000 microFIT conditional
offers, for small-scale projects of 10 kilowatts or less, subject to applicants
obtaining approval to connect to the electricity grid from their local distribution
company. To date, OPA has received nearly 8,500 microFIT applications and is
continuing to review and verify these applications. MicroFIT is an ongoing
program with applications being accepted on a continual basis. Once the
current applications have been processed, OPA anticipates a 30-day
turnaround for microFIT applications.
Emphasis on water infrastructure raised in Ontario budget
With Ontario’s Green Energy Act, 2009 sparking a boom in renewable energy
development, the Ontario government is hoping that a strategy for water
treatment and conservation will strike gold a second time. As part of its 2010
Budget, the government announced it will promote new business and
employment opportunities in the water sector by supporting the
commercialization of water and wastewater technologies. Through its water
strategy, part of the Open Ontario plan, the government will
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introduce a new Water Opportunities Act to support the development of
new technologies and practices for water conservation and treatment
improve the efficiency of Ontario’s water and wastewater infrastructure
work with researchers and entrepreneurs to create jobs and to attract clean
water expertise and investment in the province
promote Ontario’s water technology sector at home and abroad
While the government has issued few details, a market analysis report issued
by the Ontario Centre for Environmental Technology Advancement (OCETA)
and funded by the province may provide some insight into its plans. According
to The Water Opportunity for Ontario report, the global market for clean water
and wastewater technologies is worth some $400 billion (US) a year. With over
300 companies providing water equipment and services in Ontario, the report
suggests we are well positioned to become a global leader in the sector by
2015. The report calls for new legislation that would
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encourage sustainable water behaviour
adopt transparent costing and accounting of water use
support water technology demonstration and early adoption
attract early stage, innovative water technology companies to Ontario
Meanwhile, the Legislature is considering a private member’s bill, the
Sustainable Water and Waste Water Systems Improvement and Maintenance
Act, 2009. Although the chances of a private member’s bill passing are not
high, it may have refocused the government’s attention on the water agenda
and the work still left undone following the Walkerton Inquiry Report. Bill 237
would establish the Ontario Water Board to oversee aspects of municipal water
and wastewater treatment. Municipalities would be required to assess the full
cost of providing water or wastewater services, describe how they intend to pay
the full cost, and then submit this assessment as a Business Plan for review
and approval to the proposed Water Board.
Canada/US announce greenhouse gas limits on vehicles
The announcement may have come on April Fools’ Day, but federal Minister of
Environment, Jim Prentice, waited until noon so nobody would think he was
kidding. Beginning in 2011, Canada and the U.S. will effectively share common
tailpipe standards designed to reduce greenhouse gas emissions from new
vehicles by approximately 25% by 2016. Over the lifetime of the 2011 to 2016
model-year vehicles sold in Canada, technological improvements should
remove a total of 92 megatonnes of "carbon dioxide equivalent" in GHG
emissions.
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A coalition of environment
groups—including the Canadian
Environmental Law Association,
Great Lakes United and
Ecojustice—was quick to respond
to the announcement, saying the
province would be more prudent
to focus its attention on water
conservation. The groups called
on Ontario to:
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implement water efficiency
standards
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link water conservation to
infrastructure grants
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appoint a Chief Water
Conservation Officer
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require water conservation
plans for all Permit-to-TakeWater holders
Since passenger cars and light trucks account for 12 percent of domestic
emissions, the announcement supports Canada’s commitment to reduce GHGs
by 17% from 2005 levels by the year 2020. It also reinforces the federal
government’s stated intention of harmonizing Canada’s climate and energy
policies with the United States.
Fuel economy is also slated to improve about 40%, to 6.6 litres per 100
kilometres or 35.5 miles per gallon in the US. As a result of the new rules, the
cost of the average new car should increase by approximately $1,000,
according to government and industry estimates. However, the government
says consumers can be expected to recoup the higher costs in about 18
months through improved fuel economy.
The regulation would also provide standards specific to other tailpipe GHG
emissions, such as nitrous oxide (N2O) and methane (CH4). With each new
model year from 2012-2016, the fleet average GHG emission standards would
become progressively more stringent.
There are significant elements of emissions trading built into the scheme.
Companies would be required to comply with “unique” fleet average GHG
emission standards—based on the number and the size or “footprint” of the
vehicles sold—beginning with the 2011 model year. Companies could purchase
credits from the Receiver General at a rate of $20 per Mg of CO2eq to offset a
deficit incurred for that first model year. Companies would be able to generate
GHG emission credits for the 2008-2010 period that could be applied to the
2011 model year if average GHG performance exceeds specified levels.
To increase “compliance flexibility”, credits would be granted for companies
doing better than the applicable fleet average standard for a given model year;
these credits would have a lifespan of five model years and could be traded
between companies. It is anticipated that the average GHG emission
performance of the 2016 Canadian fleet of new cars and light trucks would
achieve an average level of 153 g CO2/km, a decrease of about 25% over
current levels.
As an incentive to market "advanced technology vehicles" (such as electric
vehicles, plug-in hybrid electric vehicles and fuel cells vehicles), a company
would be credited with selling two times the number of ATVs than it actually
sold in the calculation of its fleet average GHG emission performance.
Vehicle design improvements which indirectly reduce GHG emissions—such as
technologies that reduce the impact of air conditioning refrigerant leakage or
improve the efficiency of air conditioning systems—could also be subtracted
from the average CO2 tailpipe emissions of a company's fleet.
Annual reporting of a company's fleet average GHG performance and related
vehicle model information would be mandatory. Reporting would include
information about emission credits and deficits and emission trading between
companies.
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As an incentive to market
"advanced technology
vehicles" (such as electric
vehicles, plug-in hybrid electric
vehicles and fuel cell vehicles), a
company would be credited with
selling two times the number of
ATVs than it actually sold in the
calculation of its fleet average
GHG emission performance.
Ontario finalizes rules for land disposal of hazwastes
It has taken nearly three years to firm up the details, but the Ministry of the
Environment has finally released its revised Registration Guidance Manual for
Generators of Liquid Industrial and Hazardous Waste and its new Land
Disposal Restrictions (LDR) Handbook. Last updated in 2001, the Registration
Manual incorporates significant new information related to the LDR program
that prohibits the land disposal of hazardous wastes unless treated to meet
specific standards. It also contains updated information about online
registration and manifesting through the Hazardous Waste Information
Network, an overview of the revised rules relating to on-site storage and
processing, the proper management of wastes from field operations, the
revised schedules of hazardous wastes, the use of alternative fuels, and
streamlined approvals process for new or emerging waste technologies.
For copies of these materials refer to http://www.ene.gov.on.ca/en/land/
hazardouswaste/hazardouswaste.php
Ontario updates lists of acts and instruments subject to EBR
As part of its routine efforts to keep the Environmental Bill of Rights, 1993 up-to
-date and relevant, the province has amended the General Regulation (O. Reg.
73/94) and the Instrument Regulation (O. Reg. 681/94) that specifies which
ministries, Acts, regulations and instruments are subject to the different
provisions of the EBR. In addition to housekeeping changes, the Lake Simcoe
Protection Act, 2008, the Toxics Reduction Act, 2009 and the Food Safety and
Quality Act, 2001 have been prescribed under the Act, as have instruments
under the Safe Drinking Water Act, 2002 and the Endangered Species Act,
2007.
Ottawa & BC negotiate equivalency on climate change
In a rare sign of life in the fed’s climate change initiative, Environment Minister
Jim Prentice and British Columbia's Minister of State for Climate Action John
Yap signed an Agreement in Principle on Efforts to Address Climate Change on
April 6, 2010. This is the first step towards a formal Equivalency Agreement
under the Canadian Environmental Protection Act, 1999. Minister Prentice
says his government will continue to work in close collaboration with the
provinces and territories in developing harmonized climate change strategies
with the United States. As an equivalency agreement, however, this is unlikely
to derogate from B.C.’s commitments under the Western Climate Initiative,
or B.C.’s more aggressive approach to combating climate change.
Willms & Shier Environmental Lawyers LLP
4 King Street West, Suite 900, Toronto, Ontario, M5H 1B6
Tel: 416 863 0711 / Fax: 416 863 1938 / Website: www.willmsshier.com
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