Bill 68, entitled An Act to promote Ontario as open for business by amending or repealing certain Acts, was introduced in the Ontario legislature in May of 2010 and received Royal Assent on October 25, 2010. Schedule 7 of Bill 68 amends a number of statutes administered by the Ministry of the Environment including the Environmental Protection Act, the Ontario Water Resources Act, the Environmental Assessment Act, the Safe Drinking Water Act, 2002, and the Toxics Reduction Act, 2009.
Most of the amendments to the Environmental Protection Act and the Ontario Water Resources Act are intended to modernize the environmental approvals process. The existing regime for environmental approvals has been in place since approvals were first established by the environment ministry. The objectives of the new approvals process, as stated by the ministry, are to maintain and enhance protection of the environment and human health, enhance the delivery of services to businesses in Ontario, and improve public transparency and availability of information.
Risk-Based Approach to Approvals: The new approvals regime relies on a risk-based approach that, in effect, exempts certain activities that currently require an approval under Section 9 and Section 27 of the Environmental Protection Act and Section 53 of the Ontario Water Resources Act. Section 27 of the Environmental Protection Act deals with approvals for waste management activities.
The risk-based model is intended to avoid the need for certain lower risk and less complex activities to be approved through the formal environmental approvals process. Instead, these lesser risk activities would be registered on the “Environmental Activity and Sector Registry,” and simply follow certain operating conditions and requirements set out in a regulation. More complex activities would continue to require formal environmental approvals, which will now be called “Environmental Compliance Approvals” rather than “Certificate of Approvals.”
Environmental Compliance Approvals: Environmental Compliance Approvals can be issued for: an individual activity; on a site-wide multi media basis; and, on a multi-site or system-wide multi media basis. The Director of the Ministry of the Environment is not required to consider any application for approval that does not meet the prescribed regulatory requirements, and the Director may refuse to consider an application that is not submitted or completed in accordance with the Regulations.
There is also a provision in the legislation that entitles the Director, on his or own initiative, to: alter or revoke terms and conditions in an Environmental Compliance Approval, even after it has been issued; to impose new terms and conditions in an Environmental Compliance Approval; and to suspend or revoke all or part of an Environmental Compliance Approval.
Environmental Activity and Sector Registry: If an activity is governed by the “Environmental Activity and Sector Registry” then the person undertaking the activity will not require an Environmental Compliance Approval. A public registry system will be established and maintained by the environment ministry, and the person undertaking the prescribed activity will be required to register in order to conduct the activity. The intent is for the Registry to be electronic, with all registrations being done electronically.
In addition to registering the activity in accordance with the regulations, where an activity is prescribed for the purposes of the Registry, any applicable fees and financial assurances must be paid in order for the person to engage in the activity, and a confirmation of registration of the activity must be received from the Director. A person may not engage in a prescribed activity if the required registration has been suspended or removed from the Registry.
The legislation sets out certain circumstances where registration of an activity may be suspended or removed, and these include where there has been a contravention of the legislation, and where confirmation of registration was provided by the ministry on the basis of mistaken, false or inaccurate information. In addition, if the person who is engaging in the activity has requested that the registration be removed, or is no longer engaging in the activity, the registration may be suspended or removed. Finally, the registration may be suspended or removed where the Director has ordered the person to obtain an Environmental Compliance Approval instead of registering.
New Provisions in Force: Certain provisions of Bill 68 are currently in force; these include the amendments to Sections 9 and 39 of the Environmental Protection Act, and Section 53 of the Ontario Water Resources Act, which clarify the Director’s ability to issue site-wide approvals, multi-site approvals and to include terms and conditions in approvals that allow for operational flexibility. There’s also an amendment in force which provides authority for provincial officers to require responses to reasonable inquiries that are made by phone or other means of communication, where the inquiries are being made to determine compliance with legislation.
New Enforcement Measures: New provisions will allow a provincial officer to give written notice to a person engaging in an activity listed in the Registry, stating that the officer reasonably believes that the person is contravening a requirement in the Regulation and setting out one or more prescribed measures that the person must carry out within a specified period of time.
There will also be administrative penalties that can be imposed by a provincial officer or Director on a person who is reasonably believed to have contravened one of four provisions of the legislation, including: the requirement to apply for a review when required to either by regulation or by the Director; the requirement to register an activity; the requirement to maintain an updated registration; and the requirement to carry out measures set out in a provincial officer notice. The total amount of any such administrative penalty is limited to a maximum of $5,000 per contravention, if issued by the provincial officer, and $100,000 per contravention if issued by the Director.
An administrative penalty may be issued only within one year of the contravention coming to the attention of the provincial officer or the Director, and the penalty issued by a provincial officer may be reviewed by the Director upon request. Orders imposing administrative penalties that are issued or confirmed by the Director may be appealed to the Environmental Review Tribunal. Once a person pays the administrative penalty and rectifies the contravention, that person cannot be convicted of an offence in respect of the same contravention.
Rosalind Cooper, LL.B., is a partner with Fasken Martineau DuMoulin LLP, with offices across Canada. Ms. Cooper is based in Toronto, Ontario. Contact Rosalind at email@example.com