Canada: Environment @ Gowlings – March 2007

Edited by Ian Richler

Federal News

• House of Commons Passes Opposition Bill to Require Kyoto Compliance

• Federal ecoEnergy Technology Initiative Announced

• First Batch of "Challenge" Chemicals Identified

• Amendments Proposed to Transportation of Dangerous Goods Regulations

• Potential Reforms to Ontario Brownfields Regime

• Ontario Proposes Ban on Burning Used Oil in Space Heaters

• Ontario Amends Ethanol Regulation to Address Fuel Shortage

• Climate Change a Focus of BC Throne Speech

Bill C-288, a Private Member's Bill that would require the government to comply with the Kyoto Protocol, was passed by the House of Commons on February 14 and is currently being considered by the Senate.

If the Bill becomes law, the Environment Minister would need to develop an annual climate change plan and to make regulations respecting climate change, both with a view to meeting Canada's Kyoto commitment of a 6 percent reduction of greenhouse gas emissions below 1990 levels by the 2008-2012 compliance period.

The text of the Bill is available at
http://www2.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Parl=39&Ses=1&Mode=1&Pub=Bill&Doc=C-288_3.

The federal Government has allocated $230-million towards clean-energy technology research and development.

The Honourable Gary Lunn, Minister of Natural Resources, and the Honourable John Baird, Minister of the Environment, announced the ecoEnergy Technology Initiative during a recent joint news conference.

They said the $230-million investment, to be spent over four years, will support research, development and demonstration of clean-energy technologies. They described the funds as helping researchers find ways to clean up conventional energy sources such as coal and oil as well as furthering research into fuel-cell and nuclear technologies. The ecoEnergy Technology Initiative is intended to fund projects that will lead to significantly reduced emissions of particulates, gaseous pollutants, toxic substances and greenhouse gases from the production and use of energy.

The Government is directing its energy technology funds toward three main areas:

• Development of renewable energy technology such as solar, wind, small hydro and bioenergy;

• Raising energy efficiency; and

• Reducing pollution from conventional energy sources (by improving such technologies as clean coal and carbon dioxide (CO2) capture and storage).

The fund's key priorities have been described as being carbon dioxide sequestration, clean coal, clean oil sands production and renewable energy. Priorities will be further developed with provinces and industry partners through Government consultations. The Government expects most of the funds to go towards projects carried out by public-private partnerships.

"Canada is an emerging energy superpower," said Minister Lunn, "but our real challenge is to be a clean-energy superpower. To do this, we must address the fact that the greatest source of untapped energy is the energy we waste. We must also increase our use of renewable energy and develop the science and technology to make conventional energy cleaner."

Further information is available at:
http://www.eco-energy.gc.ca/index-eng.htm.

This article originally appeared in Energy @ Gowlings.

The federal Government has published a Notice in the Canada Gazette listing the first 15 "Challenge" chemicals under the recently unveiled Chemicals Management Plan.

These 15 chemicals constitute the first batch of about 200 chemicals which were identified as high priority last December. Environment Canada and Health Canada will examine these 200 chemicals in batches every three months over the next three years, with a view to determining the appropriate regulatory measures, possibly including "virtual elimination". For each chemical, industry will be challenged to provide information about whether it can be used safely.

The persons identified in the Notice (e.g. anyone who imports or manufactures more than 100 kg a year of one of the 15 substances) are required to submit certain technical information by June 5, 2007.

Further information is available at:
http://canadagazette.gc.ca/partI/2007/20070203/html/notice-e.html and http://www.chemicalsubstanceschimiques.gc.ca/plan/index_e.html.

The federal Department of Transport has released draft amendments to the Transportation of Dangerous Goods Regulations. The amendments would update references in the Regulations to the recent editions of safety standards associated with the manufacture, selection and use of highway and portable tanks.

Further information is available at:
http://canadagazette.gc.ca/partI/2007/20070210/html/regle4-e.html.

The Government of Ontario has announced that it is considering potential changes to the legislative regime for brownfields. The changes under consideration are in response to feedback received from stakeholders on the Record of Site Condition ("RSC") process.

Several of the legislative amendments that are under consideration address concerns about the "re-openers" for an RSC, i.e. the situations in which the protection of an RSC is lost. For example, under the current regime, this protection is lost if any historical contaminants migrate offsite. That is, if a neighbour discovers contaminants emanating from a property covered by an RSC, the Ministry of the Environment ("MOE") could issue clean-up orders against anyone who is or has ever been in charge, management or control of the source property. Technically, this protection would be lost even if only one molecule of contaminant crossed the property line. To provide greater certainty, the Government is considering limiting this re-opener so that the protection would only be lost if the contaminants found on the neighbouring land exceeded certain thresholds, which thresholds would depend on whether the neighbouring land was used for a sensitive use such as residential or a less sensitive use such as industrial. This change would only apply to people who are not responsible for causing or permitting the contamination in question.

Another re-opener that the Government may amend is the re-opener for change in use. Under the current regime, the protection of an RSC is lost if the property use is changed from the use specified in the RSC. The wording of this re-opener may be modified to specify that it does not put property users at risk if they sell their property and the use is later changed.

The Government is also considering introducing an express exemption from MOE orders for people who undertake remediation work at a property. The result would be that an environmental consultant performing remediation would not be considered for that reason alone as a person in charge, management or control of the property.

Some of the measures described in the Notice are directed at insulating municipalities and the Crown from civil liability in respect of brownfields. One idea is to block civil suits against municipalities for damages related to decisions to issue a building permit, or certain other planning decisions, that are based on an inaccurate RSC. This would address the concern of municipalities that they are exposed to regulatory negligence claims when they make such decisions without independently verifying the information in the RSC. Another idea is to make it more difficult to sue the Crown where it has acquired contaminated property by escheat (i.e. where property passes to the Crown after the death of a person with no will or heirs, or after the dissolution of a corporation). This would address the concern of the Crown that it is exposed to civil claims under the Proceedings Against the Crown Act merely for taking steps to investigate a property or to protect the public from dangers created by the property.

It should be noted that the Environmental Registry Notice is a discussion paper, not a proposal. No regulatory amendments have yet been proposed.

The Environmental Registry Notice is available at:
http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MjkyMjI=&statusId=MjkyMjI=&language=en.

The MOE has released draft amendments to the General Waste Management Regulation (Reg. 347) banning the use of waste oil in space heaters. The draft amendments also designate used lubricating oil as a waste. Further information is available at:
http://www.ene.gov.on.ca/envregistry/029109er.htm.

In February, a confluence of factors including a fire at Imperial Oil's Nanticoke refinery caused disruptions to Ontario's fuel supply, with some service stations running out of fuel and others raising prices. To address these disruptions, the province amended the Ethanol in Gasoline Regulation (O. Reg. 535/05) to temporarily waive the volatility standards for ethanol-blended gasoline.

The waiver was requested by Petro-Canada, which had stockpiled significant quantities of ethanol which it had planned to blend with low-volatility blendstock beginning this March. Petro-Canada suggested that it could blend this stockpiled ethanol with conventional gasoline in order to alleviate the temporary supply shortage, but that the resulting blend would not meet the volatility standards in the Regulation. The Government agreed to lift these standards until March 4, 2007, and later extended the waiver to March 15, 2007.

Further information is available at:
http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTAwMDAz&statusId=MTQ5Mzg0&language=en.

The February 13 Speech from the Throne launching the latest session of the British Columbia Legislature included bold promises to address climate change.

The Province has pledged to reduce greenhouse gas emissions by at least 33 percent from current levels by 2020 (i.e. 10 percent below 1990 levels). Interim targets will be set for 2012 and 2016 and a long-term target will be set for 2050.

Under the plan outlined in the Throne Speech, all electricity produced in the province will be required to have net zero greenhouse gas emissions by 2016. Effective immediately, the province will require 100 percent carbon sequestration for any coal-fired power plant. More trees will be planted to absorb carbon, and trees infested with the mountain pine beetle will be used to create clean energy. All new cars bought or leased by the government will be hybrids. The province will work with the Pacific states to build a "hydrogen highway" (i.e. a highway with hydrogen fuelling stations) from Whistler to San Diego by 2020.

Further information is available at:
http://www2.news.gov.bc.ca/news_releases_2005-2009/2007OTP0014-000128.htm.

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