MNR amends regulation under Endangered Species Act, 2007
On May 31, 2013, the Ministry of Natural Resources (MNR) issued amendments to Ontario Regulation 242/08 under the Endangered Species Act, 2007 (ESA). The key amendments include the following:
- Certain projects under development will be able to proceed without requiring additional approvals under the ESA if new endangered species are listed or new habitat protection requirements come into force during development, provided that the proponent follows certain rules regarding monitoring, reporting and mitigating potential adverse effects.
- In the case of the activities below, provided that the proponent registers the activity with MNR and follows certain rules regarding monitoring, reporting and mitigating potential adverse effects:
- Activities that are necessary to avoid or reduce a threat to human health or safety will generally not require a permit under the ESA;
- Certain activities that have predictable effects and require standard procedures to address such effects will generally not require a permit under the ESA;
- Ecological conservation work will generally not require a permit from the MNR under the ESA.
Appeal court upholds remediation order against innocent owner
The Ontario Court of Appeal has upheld a Divisional Court decision, which in turn upheld an Environmental Review Tribunal decision to uphold an order against the City of Kawartha Lakes (the Appellant) to remediate contamination on its land resulting from a heating oil spill on a neighbouring property. According to the Court of Appeal, the order was validly issued under section 157.1 of the Environmental Protection Act (EPA), even though it was issued against a party that did not cause the contamination in question.
As discussed in our July 2012 EH&S Bulletin, the Divisional Court had agreed with the Tribunal’s decision that fairness is just one of the factors that the Ontario Ministry of the Environment (MOE) may take into account in issuing orders. The Divisional Court had noted that the Appellant may bring civil claims to recover damages from the parties responsible for the contamination but must still comply with the remediation order pending such an action, in light of the time-sensitive need to protect the environment.
The Court of Appeal agreed with the Tribunal and the Divisional Court that evidence regarding the fault of the actual polluters is not determinative to the question whether an order under section 157.1 of the EPA ought to be revoked. While acknowledging the innocence of the Appellant with respect to the contamination, the Court of Appeal reiterated that a section 157.1 order can still be issued if the MOE deems it to be necessary or advisable to protect the environment.
For further information, please see Kawartha Lakes (City) v. Ontario (Environment) (2013 ONCA 310).
MOE proposes addition to registry-eligible activities
As reported in several of Torys’ EH&S Bulletins,1 the MOE has established the Environmental Activity and Sector Registry (EASR). The EASR is an online registry for certain low-risk activities that would no longer require an environmental compliance approval or renewable energy approval, provided that the activities meet specific requirements and are registered on the EASR. Currently, the MOE has already prescribed the following activities that are eligible for registration: certain heating systems, standby power systems, automatic refinishing facilities, commercial printing facilities, small ground-mounted solar facilities and non-hazardous waste transportation systems.
In response to the Ministry of Energy’s Feed-in Tariff Program two-year review, the MOE recently announced a proposed regulation to allow landfill gas power generating facilities to register on the EASR. In order to register, such facilities must have a name plate capacity not exceeding 10 megawatts and meet a number of design and operating criteria.
For more information, please see the proposed regulation.
Environmental Protection and Enhancement Act amended
The Environmental Protection and Enhancement Amendment Act, 2013 (Bill 21) received royal assent on May 27, 2013. The bill makes a number of amendments to the Environmental Protection and Enhancement Act, including the addition of section 36.1, enabling the Minister to make regulations regarding the establishment and operation of environmental monitoring programs. These regulations have yet to be developed. The amendments come into force on proclamation.
For more information, please see the amendments.
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