Ontario’s Auditor Report on Province’s Setting of Environmental Indicators and Targets, & Monitoring

The Office of the Auditor General of Ontario recently released a series of audit reports related to the environment in the Province.  One report examined the the value-for-money of setting environmental indicators and targets, and the subsequent monitoring.

Her report acknowledged the importance of the environment and its relationship to the economic health and social wellbeing of the people of the Province.   It stated that decision-makers and the public need an adequate picture of the state of the environment, knowledge of whether the environment is improving or deteriorating, and awareness of underlying environmental problems and risks. To have this picture, there needs to be thorough monitoring of Ontario’s environment, natural resources, wildlife, and agriculture, and clear public reporting.

The Provincial audit found that the Environment Ministry’s air and water monitoring programs are extensive, and respond to legislative and regulatory requirements, inter-jurisdictional agreements and other commitments. However, it found that the three lead ministries have not put into place effective systems and processes for setting targets, carrying out effective monitoring practices, and ensuring data quality and data sharing for certain aspects of Ontario’s environment.

With respect to environmental targets, the audit found that some environmental protection targets lack deadlines and are not evidence based. It also found that when the ministries had set targets, they did not always make them public.  Specifically, it stated that the Environment Ministry has not set targets for conserving water; decreasing hazardous and toxic substances in products; improving the water quality of lakes (other than Lake Simcoe and Lake Erie); or protecting and recovering species at risk.  It also found that the Environment Ministry’s targets to reduce the amount of waste disposed per capita lack publicized time frames for driving and measuring progress.

With respect to environmental monitoring, the audit noted that there is  no long-term, broad-scale monitoring of Ontario’s biodiversity, monitoring in Ontario’s protected areas is not required or consistent, and few environmental monitoring programs
are evaluated to ensure that they are effective.

In conclusion, the audit found that the Environment, Natural Resources and Agriculture ministries do not have effective systems and processes for setting targets, carrying out effective monitoring practices, and ensuring data quality and data sharing for certain
aspects of Ontario’s environment. These are needed for effective longer-term monitoring of Ontario’s environment, natural resources and agriculture.

In response to the audit report, the Ontario Environment Ministry stated it will explore opportunities to improve how it tracks progress and measure effectiveness of Ministry programs and how best to share program results publicly. It also stated it will review its data management approaches and look to improve the practice and application of performance measurement in our monitoring
programs.

 

Update on Faro Mine Remediation Project

The Government of Canada recently announced it had reached a significant milestone in the Faro Mine Remediation Project that will help protect the valuable fish habitat of Rose Creek.  Under the North Fork of Rose Creek Realignment Project, clean water has started to flow through a newly constructed channel that will help prevent the contamination of Rose Creek. In collaboration with Yukon partners and First Nations communities affected by the contaminated site, the Government of Canada continues to work to ensure environmental protection work is maintained throughout the COVID-19 pandemic and beyond.

The Faro Mine in south-central Yukon was once the largest open pit lead-zinc mine in the world. Today, it is the site of one of the most complex abandoned mine remediation projects in Canada. While the full remediation plan to clean up the mine is under environmental assessment, certain necessary work like this project have continued at the site as they are critical and essential for protecting human health and safety and the environment.

Realigning this section of the creek has been vital for ensuring that clean water and valuable fish habitat in Rose Creek do not come into contact with the contaminated water from mine wastes. Contaminated water can now be captured for treatment on site while the clean water safely flows into a new channel that reconnects with Rose Creek. Fish overwintering ponds have also been built to compensate for fish habitat lost due to construction.

This project has been important for the environmental protection of the area and to local First Nations: Ross River Dena Council, Liard First Nation and Selkirk First Nation. Yukon-based company Pelly Construction Ltd. was awarded the subcontract for the realignment project and partnered with Ross River Dena Council’s Dena Nezziddi Development Corporation to include training and employment of local Indigenous workers for the project.

The Dena Nezziddi Development Corporation also actively participated in the construction of a new work camp at site. The camp provided temporary housing for approximately 75 workers who came from Ross River and other communities outside of Faro and the Yukon, reducing travel between Northern communities during the COVID-19 pandemic. To date, there have been no confirmed cases of COVID-19 at the mine site.

The North Fork of Rose Creek Realignment Project has been an important and necessary part of protecting the environment and in advancing one of the most complex abandoned mine remediation projects in Canada.

QUOTES

“I would like to extend my congratulations to the Faro Mine Remediation Project team, as well as their First Nations and Yukon partners, on the North Fork of Rose Creek Realignment Project. Canada has been working collaboratively with Northern and Indigenous partners, and we are proud to see opportunities for training, employment, and engagement with Yukon First Nations on this long-term project as a whole and on critical work for environmental protection. We know that by working in collaboration with all partners, we will be able to effectively continue to advance the long-term remediation plan while also managing the immediate risks to both the health of northerners and the environment.”

The Honourable Daniel Vandal, P.C., M.P.
Minister of Northern Affairs

“Remediating the Faro Mine Site is our top priority. The completion of the North Fork of Rose Creek realignment marks an important step towards protecting the water. The Ross River Dena Council is pleased with the progress being made at the Faro Mine Site. We want to see the remediation work continue and for this to remain a top priority for Canada and the Yukon.”

Chief Jack Caesar
Ross River Dena Council

“The Government of Yukon is pleased with the advanced progress on the North Fork Rose Creek realignment project. Our skilled Yukon-based workforce is why this project can continue despite limitations due to COVID-19. We are glad that Yukoners and Yukon First Nations will benefit economically from participation in these urgent works. It also proves that Yukoners are well positioned to contribute to remediation activities being implemented at Yukon’s abandoned mines.”

Minister Ranj Pillai
Energy, Mines and Resources, Government of Yukon

“The Faro Mine Remediation Project is key to supporting our communities, strengthening our economy, and protecting the environment. Yukoners and Yukon First Nations continue to be an important part of this remediation and the North Fork of Rose Creek Realignment Project. I am happy to see the remarkable progress made as work continues during this unprecedented time. It is a testament to the dedication of all those involved in the project.”

The Honourable Larry Bagnell, P.C., Member of Parliament for Yukon

Quick Facts

  • Most work packages and subcontracts at the Faro Mine site are structured to maximize opportunities for Indigenous businesses.
  • To ensure the Faro Mine Remediation Project is a success and that all partners work cooperatively, a Transition Agreement situating management of the Faro Mine Remediation Project under the Government of Canada has been signed by both Selkirk First Nation and Ross River Dena Council.
  • Budget 2019 allocated $2.2 billion over 15 years to create the Northern Abandoned Mine Reclamation Program, starting in 2020–21. The program will remediate the largest, most complex contaminated sites in the North.

Source: Crown-Indigenous Relations and Northern Affairs Canada

Are Regulatory Changes coming to B.C. for home heating fuel tanks?

As reported in the Saanich News, a Councillor from the Town of View Royal in British Columbia is pushing for provincial legislation to enhance safety and security issues for fuel oil tanks.  Councillor John Rogers wants to lessens the risk of environmental contamination from leaking heating fuel tanks.

Last month, Rogers’ motion to the Union of B.C. Municipalities’ annual meeting, calling on the province to legislate changes to enhance oil tanks’ safety and security, was tabled for later discussion.  The motion called on the province to legislate mandatory registration and tagging of home heating oil tanks  as being in good condition, and prohibit the filling of untagged tanks.

Under the proposed legislation, a mandatory inspection system would be established that included authorized inspector access.  Such a regulation would place liability on fuel delivery companies for spills from tanks they fill and require those companies to carry related insurance.

Under this proposal, the cost for the public clean up costs associated to leakage from properties where the owner has self-identified as having a heating oil tank would be covered by insurance.  To offset the additional costs for fuel delivery companies, owners of fuel oil tanks would have a surcharge added to their bill.

The proposal would have also required proper decommissioning of tanks that no longer meet certification or are unused for a prescribed time.

“The regulations are the province’s purview, and if the province were to take this on, every municipality would receive the benefit,” Councillor John Rogers said.

Currently in British Columbia, homeowners are responsible for ensuring that their home heating oil tanks are safe, secure, and in good operating condition.  Insurance companies in B.C. have required homeowners to move oil tanks outdoors as well as ensuring their tank meets B.C. fire and building code standards for construction and maximum age.

Leaks from Domestic Heating Fuel Storage Tanks

It is estimated that more than 40% of all oil spills in Canada are from domestic oil tanks used to heat homes.

According to the Insurance Bureau of Canada, the cost for clean-up of a leaking fuel oil tank averages between $250,000 and $500,000.

Since 2012, in the community of Saanich, B.C., a district municipality on Vancouver Island, there has been environmental response crews have had to respond to reports of six buried oil tanks that failed, four copper lines leaking (running from the tank to the furnace) and 12 above ground tanks leaking.

“We do know that there can be severe problems when tanks have been unknowingly left in the ground,” Saanich Mayor Fred Haynes said in an interview with Saanich News. “For new homeowners, it has caused severe hardship and environmental damage. Buried tanks are a continuing concern in Saanich we seem to have a fairly robust approach to that.”

Rogers plans to provide the UBCM executive with further details around his motion in hopes that it may make it onto next year’s recommended list.

U.S.: Aligning Affordable Housing and Brownfields Projects for Success

Written by Nicholas Targ, Partner and Co-chair of Holland & Knight’s National Environmental Team and Chelsea Maclean, Partner, Holland & Knight

Affordable housing and infill developers can benefit from recently enacted housing laws and Brownfields law and policies. These new laws along with national-caliber land use and environmental help can deliver affordable housing and infill projects faster and can substantially simplify the California Environmental Quality Act (CEQA) and development process.

New Housing Laws Benefit Affordable Housing and Other Infill Developers

The following three examples demonstrate the power of the new housing laws:

  • SB 375 Sustainable Communities Environmental Assessment (SCEA): A litigation-tested CEQA streamlining tool, SCEA helped an affordable housing developer client meet tight funding deadlines for a large affordable housing project and reduce litigation risk. The SCEA document is similar in scope to a typical Initial Study/Mitigated Negative Declaration, but includes the more protective “substantial evidence standard” of review of an Environmental Impact Report.
  • SB 35 Ministerial Processing Combined with AB 1764 Unlimited Density Bonus: The powerful SB 35 statute, which provides for ministerial/CEQA exempt approval, was layered with AB 1763, which provides for unlimited density under the State Density Bonus Law, for a client’s 125-unit infill project. After reviewing the use of the new housing laws with the city attorney’s office and Planning Department, the affordable housing provider gained approval for its housing project.
  • AB 1804 County Infill Exemption: This 2018 CEQA exemption for infill projects in unincorporated counties provided an affordable housing provider client with an accelerated entitlement pathway for its mixed-use affordable housing/community serving medical clinic project.

Attention to Brownfields Issues, and Alignment of Environmental and Housing/CEQA Laws is the Winning Combination

The new housing and CEQA streamlining laws frequently include special requirements for a project to be built on environmentally impacted land (e.g., SB 35, CEQA Class 32 Categorical Exemption for Urban Infill Housing). Moreover, given the recent ratcheting-down of vapor intrusion environmental screening levels, careful attention to Brownfields issues can mean the difference between success, delay and/or cost overruns.

The use of key Brownfields tools such as insurance, streamlined regulatory processes and avoidance of legal and environmental “land mines” (e.g., Cortese List, late discovered contamination) can make all of the difference. Successful infill projects – especially affordable housing projects, which carry higher regulatory and public scrutiny – are those that evaluate Brownfields issues early in the decision-making process.

Recent successful use of Brownfields tools to advance affordable and infill housing and associated projects include:

  • Preliminary Endangerment Assessment (PEA) Decision Document: The PEA assessment process allowed the state environmental agency to conclude at an early stage in the development process that no further action was required at a client’s affordable housing site, and to establish a workable and environmentally protective set of construction requirements.
  • California Land Reuse and Revitalization Act (CLRRA): Reauthorized in 2016, CLRRA was used to streamline the regulatory cleanup path for a client’s project and to provide qualified environmental immunities. Integrating the cleanup plan into the CEQA document, as a mitigation measure, litigation risk was reduced and regulatory certainty increased.
  • Comfort Letter: A state environmental agency’s “comfort letter” established that a release of the emerging chemical of concern – per- and polyfluoroalkyl substances or PFAS – was not sourced from a client’s affordable housing site based on environmental assessment. The letter further stated that the health of residents and construction crews would be protected, provided appropriate steps were followed. The comfort letter was critical to securing a broadly protective environmental insurance policy and allowing the affordable housing developer’s project to move forward.

Conclusion

It is recommended that housing developers consider careful alignment of the new housing laws, CEQA/National Environmental Policy Act (NEPA) compliance processes and Brownfields issues. Misalignment, especially for affordable housing projects, can result in avoidable problems ranging from those related to financing and making key milestones to conveyance/take down terms and selection of regulatory pathway for entitlement and environmental compliance.

Working with both nonprofit affordable housing providers and market developers, who produce workforce housing and infill projects, Holland & Knight’s West Coast Land Use and Environmental Group has helped guide the regulatory pathway for numerous affordable and mixed-income projects over the years across California. Holland & Knight has built a housing litigation practice with a strong record of success, and has particular strength in assisting municipalities in the appropriate use of these new housing laws to accelerate project implementation. Combining deep land use and environmental knowledge, and a highly developed housing/CEQA litigation practice, Holland & Knight lawyers have decades of experience helping nonprofit and other affordable housing and infill developers achieve success from initial diligence to opening day.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


For additional information or assistance, contact the authors or a member of Holland & Knight’s West Coast Land Use and Environmental Group.

About the West Coast Land Use and Environmental Group: Holland & Knight’s Chambers-ranked West Coast Land Use and Environmental Group includes more than 25 attorneys and professionals in San Francisco, Los Angeles and Washington, D.C., who are dedicated to producing results for their clients. Our environmental, land use, real estate, finance and litigation attorneys and policy professionals work as one team, ensuring that the person with the right experience is addressing the issue. Our attorneys are consistently nationally ranked in publications such as U.S. News – Best Lawyers “Best Law Firms” guide and Chambers. In addition to deep private sector experience, many of our attorneys have agency and legislative backgrounds, including working at the White House, U.S. Department of Justice, U.S. Environmental Protection Agency, U.S. Department of the Interior, Congress, and state and local government.

 

 

 

U.S. EPA awards EPA Awards $2.3 Million in Funding for Businesses to Develop Innovative Environmental Technologies

The U.S. Environmental Protection Agency (U.S. EPA) recently announced that it had awarded $2.3 million in funding for 23 contracts with small businesses through its Small Business Innovation Research (SBIR) program to develop technologies that will help protect human health and the environment. This year’s funded technologies are focused on clean and safe water, air quality monitoring, land revitalization, homeland security, sustainable materials management, and safer chemicals.

“EPA’s Small Business funding supports our economy and opens doors to further environmental protection by fostering and encouraging small businesses to bring groundbreaking technologies to market,” said EPA Administrator Andrew Wheeler. “With EPA funding, these entrepreneurs will be able to develop their ideas to address priority EPA issues ranging from cleaning up PFAS contamination to reducing food waste.”

These small businesses are receiving Phase I funding of up to $100,000 from EPA’s SBIR program, which awards contracts annually through a two-phase competition. After receiving a Phase I award, companies are eligible to compete for a Phase II award of up to $400,000 to further develop and commercialize the technology.

SBIR Phase I recipients include:

  • Aerodyne Research, Inc., Billerica, Mass., to develop an ethylene oxide monitor with an ultra-low limit of detection.
  • AirLift Environmental LLC, Lincoln, Neb., to develop a remedial treatment to remove PFAS and associated co-contaminants from soil and groundwater.
  • Creare LLC, Hanover, N.H., to develop a hydrodynamic cavitation technology to destroy PFAS in drinking water.
  • CTI and Associates, Inc., Novi, Mich., to test and evaluate a novel technology for the concentration and destruction of PFAS in landfill leachate.
  • Hedin Environmental, Pittsburgh, Pa., to create a treatment process for contaminated waters at coal and metal mines.
  • Mesa Photonics, LLC, Santa Fe, N.M., to create a compact, fast, sensitive and selective optical sulfur dioxide monitor.
  • Onvector LLC, King of Prussia, Pa., to develop a technology that destroys PFAS in water and wastewater utilizing a plasma arc reactor.
  • Physical Optics Corporation, Torrance, Calif., to create a 3D mapping and visual system to detect radiation contamination for homeland security applications.
  • RemWell, LLC, Potsdam, N.Y., to design a remediation technology using sonolysis for PFAS contaminated groundwater.

The U.S. EPA is one of 11 federal agencies that participate in the SBIR program, enacted in 1982 to strengthen the role of small businesses in federal research and development, create jobs, and promote U.S. technical innovation. To be eligible, a company must be an organized, for-profit U.S. business and have fewer than 500 employees.

US Relaxation of Environmental Rules in the Wake of the COVID-19 Pandemic – The Implications for Canada and Mexico

Written by Joseph Castrilli, Counsel, Canadian Environmental Law Association

In a move that has implications for international arrangements with Canada regarding protection of the North American environment, the Environmental Protection Agency of the United States, citing the coronavirus pandemic as its justification, has announced that it will temporarily not seek penalties against companies that violate monitoring, reporting, and other obligations under US federal environmental laws. In a policy statement issued on March 26, 2020, the agency indicated that it will exercise “enforcement discretion…for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic” if the regulated community takes the steps set out in the policy.

Steps Under the Relaxation Policy

The steps under the policy require the regulated community to: (1) act responsibly to minimize effects and duration of any noncompliance; (2) identify the nature and dates of the noncompliance; (3) identify how COVID-19 was the cause of the noncompliance, the decisions and actions taken in response, including best efforts to comply and return to compliance; (4) return to compliance; and (5) document the information, actions, and conditions specified in steps 1-4.

Regulated Activities Covered by the Policy

The agency’s enforcement discretion under the policy covers: (1) routine compliance monitoring and reporting by regulated entities (the policy indicates that “EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request”); (2) settlement agreement and consent decree reporting obligations and milestones (the policy adopts the same position as in point number (1), above, but notes that consent decrees are still subject to independent judicial oversight); and (3) facility operations (the policy indicates that it applies to facility operations impacted by COVID-19 that may create acute risk or imminent threat to human health or the environment, result in air emission control, wastewater, or waste treatment system or equipment failure that may result in exceedances of enforceable limits, cause hazardous waste generation transfer, or animal waste feeding operation compliance, delays, or other noncompliance, all of which are generally to be covered by steps 1-4, above, except for imminent threats which also will require EPA consultation with state or tribal governments).

How the Policy Has Been Viewed in the United States

As reported in the media, the relaxation of environmental measures has been both assailed (“an open license to pollute…and abject abdication of the EPA mission to protect our well being” – Gina McCarthy, EPA Administrator in Obama administration) and defended (“a very straightforward and sensible guidance” – Grant Nakayama, EPA Office of Compliance in Bush administration) by legal, regulatory, and regulated communities in the United States. Others suggested that the issue was not so much the policy itself as how it will be implemented, particularly in the context of air pollution from industrial facilities located predominantly in low income communities where at-risk populations historically under stress from air pollutants that exacerbate asthma, breathing difficulty, and cardiovascular problems now also face respiratory threats posed by a virus that attacks the lungs.

Implications for Canada

Despite the policy’s direct impact in the United States, there are significant implications for Canada (and Mexico) as well. First, there are a myriad of cross-border environmental problems a policy such as this could exacerbate. Air emissions from the Ohio Valley have long had significant impacts in Ontario, Quebec, and the Maritimes. Superfund hazardous waste sites along the Canada – United States border, such as in the Niagara area, have long had significant implications for the integrity of the shared waters of the Great Lakes. Water pollution discharges from the state of Washington impact the Salish Sea, the estuary formed by inland waters with southern British Columbia that connect to the Pacific Ocean primarily through the Strait of Juan de Fuca.

Second, there are a variety of pacts between Canada and the United States that the policy could ride roughshod over:

• The Boundary Waters Treaty of 1909 (Article IV, section 2) that requires that neither country should cause water pollution in its waters which will cause injury to health or property in the other country and the companion Canada-United States Great Lakes Water Quality Agreement of 2012, which provides for a regional mechanism to achieve the Treaty’s goals in the Great Lakes Basin ecosystem;

• The Canada – United States Air Quality Agreement, signed in 1991, with the goal of reducing air emissions that cause acid rain, which was expanded in 2000 to reduce transboundary smog emissions; and

• The environmental side agreement under the North American Free Trade Agreement (as amended) commits Canada, Mexico, and the United States to ensuring that their laws and regulations provide for high levels of environmental protection and that they are effectively enforced through measures that include compliance monitoring and reporting (Articles 3 and 5).

Whether viewed as a waiver of monitoring and reporting requirements with respect to emissions or discharge limits or, more ominously, as a waiver of compliance with the limits themselves for the duration of the pandemic, this is not good news for the environment or public health in North America especially in the midst of a pandemic caused by a virus that attacks the respiratory system of its victims. It is also not clear whether Canada (or Mexico) were consulted by the EPA before this policy went into effect (it is retroactive to March 13, 2020). Coupled with the major de-regulation push the EPA has been engaged in over the past few years, the policy seems all of a piece with the worst impulses of those who want to de-construct the administrative state. We can do better than turn the clock back to the dark ages of environmental non-regulation. In the midst of a pandemic, stopping the spread of bad ideas would be a good place to start, including ensuring they are not imported to Canada.


About the Author

Joseph F. Castrilli is counsel to the Canadian Environmental Law Association in Toronto. He is a member of the Ontario and British Columbia Bars, is certified as a specialist in environmental law by the Law Society of Ontario, and has appeared before all levels of court on environmental matters, including the Supreme Court of Canada. He also has taught environmental law courses and seminars at Queen’s University, University of Toronto and Osgoode Hall Law School at York University.

 

Looking Ahead: Bold Predictions for the Next Decade

Written by Bill Leedham, P. Geo., CESA

As it is the start of the new decade, I’ve dust off my crystal ball and make a few bold predictions for the decade(s) to come.

Sustainability and the ‘Green’ Economy

We have already seen emerging technologies and new industries geared towards sustainability. In a world where finite resources are dwindling, and with increasing pressure for renewable sources of energy, it’s easy to foresee further consumer demands for a more “green” economy. Hopefully this results in more than just advertising buzzwords, but rather a planned and sincere approach to waste reduction, sustainable resource management, and true ‘cradle-to-grave’ responsibility from manufacturer to end consumer for all products.

 New Problems and New Opportunities

The last decade saw an increasing awareness of emerging contaminants such as micro-plastics, PFOS and PFOA. Similar to past generations experiences with their own ‘new’ contaminants such as asbestos and UFFI; I am sure we will encounter as-yet undiscovered sources of contamination. Whether such pollutants will be associated with cobalt mining for lithium battery production, cannabis waste from commercial growers or by-products from cellular agriculture; it’s how we deal with these new pollutants that may set us apart from past pollution legacies – or not. Developing technical solutions to these new problems will also create unique opportunities for the environmental consulting, remediation and waste management industries.

Lingering Legacies

While we will no doubt experience new environmental contamination issues in the future, we must not forget about the existing pollution problems and the legacies they create. As our population grows, we will continue to create more waste and run out of conventional landfill space – which will require an increase in recycling, re-use, waste reduction and diversion, and alternative methods of waste disposal. Plastic pollution in our waterways is a massive problem that must be solved before there are more plastics than fish in the oceans. Reclamation of abandoned ‘orphan’ oil wells, out-of-service mines, and eventual cleanup of depleted oils sands production facilities and shale-oil fracking sites should be planned for and financed today, so they don’t bankrupt our children and grandchildren.

Environmental Activism and Increasing Political Divides

The rise of environmental activists like Greta Thunberg seems to go hand in hand with the increasing divides between the political right and left, and the growing gap between the very wealthy and the very poor. Unfortunately, I think these gaps may widen further unless we can find a reasonable compromise that all sides can accept. In my opinion such balance would represent real sustainability, but I’m not sure that is achievable in this age of hyper-sensitivity and social media-driven ‘fake’ news from all sides. Regardless of your political persuasion or economic strata; I think we all can (and should) agree that common goals like pollution prevention, waste reduction, clean air, safe water, habitat protection, species biodiversity, are all worthy and necessary endeavours. The sooner we stop arguing and start listening to each other, the sooner we can solve some of these problems and promote and maintain a healthy environment and a truly sustainable economy.


About the Author

Bill is the Head Instructor and Course Developer for the Associated Environmental Site Assessors of Canada (www.aesac.ca); and the founder and President of Down 2 Earth Environmental Services Inc. You can contact Bill at [email protected]

What Exactly Is Canada Doing About The Protection Of Our Environment?

Written by Paula Lombardi, Siskinds LLP

The Federal Government is required under the Federal Sustainable Development Act, S.C. 2008, c.33 (“Act1) to provide Canadians with a strategy as directed by the precautionary principle.

The precautionary principle is defined in section 2 of the FSDA, for implementing any thing, action or process to develop, improve and protect our environment of threats of “serious” or “irreversible damage”, regardless of lack of full scientific data, or cost-effective measures to prevent “environmental degradation”.

The FSDA was passed in June of 2008, and as statutorily required, the federal government implemented the first written objectives to Canadians in a report known as the “Federal Sustainable Development Strategy” (FSDS) for the years 2010 to 2013. The Act requires that the FSDS be updated every three (3) years by the Minister of the Environment based on the precautionary principle. The federal government’s fourth and most recent update is entitled “Achieving a Sustainable Future. A Federal Sustainable Development Strategy for Canada 2019 to 2022″ and was released on June 19, 20192 (the “2019-2022 FSDS”). Every Canadian including Indigenous organizations, non-governmental organizations, academics, businesses (large or small) are invited before the end of each reporting period to make comments on the draft report prior to its release. While the 2019-2022 FSDS report is complete, comments on the new report or ideas on implementation of its goals can be made on the federal government’s Commitments Board or by sending an email to [email protected].

As we enter a new decade, the re-elected liberal federal government will be working with Canadians to attain the thirteen (13) sustainable development goals by 2022. These goals include: lowering emissions; developing more green operations; preserving healthy coasts and oceans; growing clean technology; improving infrastructure; improving lakes and rivers; maintaining lands and forests; ensuring healthy wildlife; providing clean drinking water; creating sustainable food; connecting Canadians with nature; and, encouraging sustainable communities to live clean.

The question is whether these development changes really affect each Canadian? The answer is yes.

These development goals can only be achieved and sustained through action by individuals, the business sector and provincial governments. For example, in December of 2017, The Minister of the Environment and Climate Change Canada (“ECCC”) the Honourable Catherine McKeena stated: “Sustained action on Great Lakes restoration is key to the health and economic prosperity of citizens in this important region.”3 The ECCC gave close to $45 million in new funding to the Great Lakes Protection Initiative to take action on identified priorities (i.e. 2017 State of the Great Lakes Report). These priorities included reducing toxic and nuisance algae and harmful pollutants to restore water quality, and improving and protecting its ecosystem.

The creation of the Canada-Ontario Lake Erie Action Plan4 set out 120 actions to help reduce phosphorus entering Lake Erie. The City of Hamilton has contributed $14 million5 to the Randle Reef Sediment Project. Although this immense multi-year initiative remains on budget with the goal to be completed by 2022, it could only remain possible by the FSDA and application of the precautionary principle.

The 2019-2022 FSDS report is a free public document that all Canadians can easily access by downloading from the federal government website or visiting http://www.fsds-sfdd.ca/downloads/FSDS_2019-2022.pdf.

Footnotes

1 https://laws-lois.justice.gc.ca/eng/acts/f-8.6/page-1.html#h-240603

2 http://www.fsds-sfdd.ca/index.html#/en/intro/annexes#tabs

3 https://www.canada.ca/en/environment-climate-change/corporate/transparency/priorities-management/departmental-results-report/2017-2018/results.html#toc3

4 https://www.canada.ca/en/environment-climate-change/services/great-lakes-protection/action-plan-reduce-phosphorus-lake-erie.html#toc4

5 https://www.hamilton.ca/city-initiatives/our-harbour/budgets-and-fast-facts

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


About the Author

Paula Lombardi is a partner of Siskinds LLP, and practices in the areas of environmental, municipal, regulatory and administrative law. Prior to joining Siskinds, Paula worked as an associate at a Bay Street law firm where her practice focused on occupational health and safety, environmental and regulatory matters.  Paula recently spent two years as in-house counsel for a major privately owned US corporation, whose owner is on the Forbes 500 list, and was responsible for all Canadian legal and business issues relating to the import and export of goods, transportation of hazardous materials, remediation of contaminated sites, construction of large infrastructure projects, regulatory compliance, NAFTA matters, and preparation of environmental assessments in the US and Canada.

 

Excess Soil Management Guideline in Ontario – Berkley Canada’s White Paper

The Ontario Ministry of the Environment, Conservation and Parks (MECP) has finalized the Excess Soils Management Framework, bringing comprehensive change to how excess soils are managed in Ontario. The Environmental Team at Berkley Canada (a Berkley Company) recently released a White Paper which helps summarize key parts of the Framework, discusses emerging liabilities for various stakeholders, and highlights potential mitigation tools.

The MECP’s Framework appears to have two strategic goals”

  1. Protect human health and the environment from inappropriate use of excess soils; and
  2. Encourage the beneficial reuse of excess soils.

The White Paper provides readers with a summary of the Framework (from an insurer’s perspective) along with easy access to the relevant supporting documents and helps readers identify new risks and potential risk transfer solutions associated with the Framework.

The White Paper would be of interest to Environmental Consultants, Remediation and Construction Contractors, Real Estate Developers, and Land Owners.

 

Canada Environmental Damages Fund – Call for Proposals

The Canadian Environmental Damages Fund (EDF) is a specified purpose account administered by Environment and Climate Change Canada (ECCC) to direct funds received from fines, court orders and voluntary payments to priority projects that will benefit Canada’s natural environment.

ECCC recently issues a call for proposals for funding of projects.  The deadline for submission of proposals is February 18th, 2020.

Groups eligible for funding include non-governmental organizations, universities and academic institutions, Indigenous organizations, and provincial/territorial & municipal governments.  Although private companies are not eligible for funding, they are encouraged to partner with eligible groups to apply for funding.

Eligible Projects

When allocating funds, ECCC gives priority to projects that restore the natural environment and conserve wildlife, followed by environmental quality improvement initiatives, research and development on environmental restoration and improvement, and education and awareness on issues affecting the health of the natural environment.

There is no maximum project duration. The average length of a project is approximately two years.

EDF funding is available for projects that meet the following criteria:

  • address one or more of EDF’s four priority areas noted above
  • satisfy all fund use requirements as listed on the EDF Available Funds page
  • are scientifically sound and technically feasible
  • are cost-effective in achieving goals, objectives and results
  • can measure results using EDF performance indicators
  • show that the environment will benefit from the project
  • demonstrate that the applicant possesses or has access to necessary partnership, experience, knowledge and skills required to undertake the project

While matching funds are not required, evidence of other funding sources such as matching contributions and the respective amounts, or demonstration of the applicant’s ability to raise funds from sources other than the federal government in a past project will be considered as an asset at the proposal evaluation stage.

In addition, your project must include at least one of the EDF’s performance indicators.  The EDF Applicant Guide contains the complete list and explanation of indicators and is available upon logging into the Grants and Contributions Enterprise Management System (GCEMS).

Available funds

Available funding varies according to the number of court awards and voluntary contributions directed to the EDF. In its sentencing decision, the court may recommend the recipient, location and scope of a project funded by the fine. This information is considered in the assessment of the fine and in the definition of the appropriate fund use requirement. Funding is currently available in the following provinces and territories:

British Columbia

Application Deadline:  February 18, 2020
Location: British Columbia
Funds Available: $275,033.06

Fund use requirement: For projects related to the conservation and protection of fish or fish habitat or the restoration of fish habitat in any watershed in the Province of British Columbia with priority for projects in the Bulkley River watershed, Fraser River watershed (Cariboo-Chilcotin Central Region), or the Campbell River watershed, or near the city of Powell River, British Columbia. Minimum funding request is $100,000.

Application Deadline:  February 18, 2020
Location: British Columbia
Funds Available: $90,000

Fund use requirement: For projects aimed at waterfowl, bird and fish habitat conservation and restoration in British Columbia with priority for projects in or around the Fort St. John area, British Columbia. Minimum funding request is $90,000.

Alberta

Application Deadline: February 18, 2020
Location: Alberta
Funds Available: $269,950.17

Fund use requirement: For projects related to the conservation and protection of fish or fish habitat or the restoration of fish habitat in the Province of Alberta, with priority for projects in the North Saskatchewan River watershed. Minimum funding request is $100,000.

Application Deadline: February 18, 2020
Location: Alberta
Funds Available: $35,227.65

Fund use requirement: For projects aimed at managing and/or conserving and protecting fish and/or fish habitat in the Lesser Slave Lake watershed. Minimum funding request is $35,227.65.

Northwest Territories

Application Deadline:  February 18, 2020
Location: Northwest Territories
Funds Available: $32,765.08

Fund use requirement: For projects aimed at protecting, conserving or restoring the environment or promoting the conservation and protection of fish or fish habitat or the restoration of fish habitat in the Northwest Territories with priority for projects within the Yellowknife watershed, Northwest Territories. Minimum funding request is $32,765.08.

Saskatchewan

Application Deadline:  February 18, 2020
Location: Saskatchewan
Funds Available: $40,000

Fund use requirement: For projects aimed at promoting the proper management and control of fisheries or fish habitat or conservation and protection of fish or fish habitat in the Province of Saskatchewan with priority for projects in the Moose Jaw watershed, Saskatchewan. Minimum funding request is $40,000.

Application Deadline:  February 18, 2020
Location: Saskatchewan
Funds Available: $104,000

Fund use requirement: For projects aimed at protecting, conserving or restoring the environment in the Province of Saskatchewan, with priority for projects in the west-northwest region of Saskatchewan. Minimum funding request is $104,000.

Yukon

Application Deadline:  February 18, 2020

Location: Yukon
Funds Available: $20,000

Fund use requirement: For projects aimed at protecting, conserving or restoring the environment in the Yukon Territory with priority for projects near Whitehorse, Yukon. Minimum funding request is $20,000.

Ontario

Application Deadline:  February 18, 2020
Location: Ontario
Funds Available: $75,000

Fund use requirement: For projects aimed at the conservation and protection of fish or fish habitat or the restoration of fish habitat within the municipal boundaries of the City of Kawartha Lakes. Minimum funding request is $75,000.

Québec

Application Deadline: February 18, 2020
Location: Quebec
Funds Available: $404,199

Fund use requirement: For projects aimed at promoting the conservation, protection and restoration of the habitat of Lac Mégantic and the Chaudière River. Minimum funding request is $100,000.

Application Deadline: February 18, 2020
Location: Quebec
Funds Available: $380,000

Fund use requirement: For projects aimed at scientific research, improvement and/or restoration of fish habitat or the conservation and protection of fish or fish habitat in the region of la Capitale-Nationale or the Chaudières-Appalaches. Minimum funding request is $100,000.

Application Deadline: February 18, 2020
Location: Quebec
Funds Available: $1,126,627

Fund use requirement: For projects aimed at promoting the protection, conservation, recovery or restoration of the environment in the Province of Quebec, more specifically in the Montreal region. Minimum funding request is $200,000.

Newfoundland and Labrador

Application Deadline: February 18, 2020

Location: Newfoundland and Labrador
Funds Available: $200,000

Fund use requirement: For projects aimed at protecting, conserving, or restoring the environment in the Province of Newfoundland and Labrador. Preference will be given to projects in coastal locations. Minimum funding request is $100,000.

New Brunswick

Application Deadline: February 18, 2020
Location: New Brunswick
Funds Available: $50,000

Fund use requirement: For projects aimed at promoting the conservation and protection of fish and fish habitat, or the restoration of fish habitat in the Province of New Brunswick. Minimum funding request is $50,000.

Application process

Step 1: Confirm available funds and project eligibility

Review funding opportunities, and confirm funds are available in your project’s location. Review fund use requirements associated with each available fund and ensure your project’s activities satisfy those requirements.

Log into GCEMS to access the EDF Applicant Guide. Refer to the Applicant Guide to ensure all proposed project activities are eligible EDF expenditures. For questions or clarification, please contact an EDF office in your region.

Step 2: Prepare your funding application using GCEMS

Visit the GCEMS application instructions page for technical assistance documents, tutorials, and support throughout your application preparation.

If desired, contact the EDF office in your region prior to the application deadline to discuss your project application with an EDF Program Officer. Officers can also help provide advice/information on:

  • the EDF program
  • the funding process
  • official languages requirements

Step 3: Submit your application

Once you have submitted your application, you will receive an acknowledgment of receipt email confirming successful submission.

Following the project review phase, you will receive notification on the status of your funding application.