Proposed EHS Regulatory Changes – February 2019

The Environmental Protection Agency and the Department of the Army are looking for comments regarding a new definition for the scope of waters federally protected in the United States under the Clean Water Act. This proposed definition would define “waters of the United States” more narrowly, and would affect permitting programs and rules regarding releases of oil and hazardous substances.

Comments must be received on or before April 15, 2019.

The Environmental Protection Agency (EPA) proposes to find that it is not “appropriate and necessary” to regulate hazardous air pollutant emissions from coal- and oil-fired electric utility steam generating units (EGUs). As part of this proposal, comments are being sought on the following:

• The effect this proposal will have on the Clean Air Act and existing emission standards.
• Whether the EPA has the authority or obligation to delist EGUs being regulated under the Clean Air Act (section 112(c)).
• Whether to rescind and delist (or to rescind without delisting) EGUs from the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Coal- and Oil-Fired EGUs, commonly known as the Mercury and Air Toxics Standards.
• The results of a residual risk and technology review of the NESHAP.
• Establishing a subcategory for emissions of acid gas hazardous air pollutant from existing EGUs firing eastern bituminous coal refuse.

Comments must be received on or before April 8, 2019.

The Environmental Protection Agency is proposing to amend the National Emission Standards for Hazardous Air Pollutants for the Hydrochloric Acid Production source category. The proposed amendments address the startup, shutdown, and malfunction provisions of the rules, add the option for electronic reporting, and update the reporting and recordkeeping requirements.

Comments must be received on or before March 21, 2019.

New federal rules could be adopted to prohibit some consumer product packaging that are neither considered recyclable or compostable.

Some exceptions would be made in certain circumstances, such as for medical products, for situations where non-recyclable or non-compostable material is essential for the product to be delivered or used properly, or where using an alternative material considered recyclable or compostable would compromise the quality or integrity of the product.

These changes would be implemented by amending the Canadian Environmental Protection Act, 1999.

The Government of Canada announced its intention to have the application of the Reduction of Carbon Dioxide Emissions from Coal-fired Generation of Electricity Regulations no longer apply in Saskatchewan, to allow “Saskatchewan to achieve equivalent greenhouse gases emission reductions” with its own provincial program.

The measure would start on January 1, 2020, and would be implemented by adopting an Order Declaring that the Reduction of Carbon Dioxide Emissions from Coal-fired Generation of Electricity Regulations Do Not Apply in Saskatchewan.

Interested persons can make comments concerning these changes until April 17, 2019.

The Government of Canada announced its intention “to expand the Automatic Identification System (AIS) carriage requirements to a wider category of Canadian and non-Canadian passenger vessels that are navigating in Canadian waters”.

According to the Government of Canada, the changes would extend AIS Class A or Class B carriage requirements to

• vessels that are certified to carry more than 12 passengers; and
• vessels certified to carry passengers that are eight metres or more in length.

An exception would be made for “passenger vessels that are operating in sheltered waters”.

The owners of the vessels subject to those changes “would have a choice of installing a Class A or Class B AIS”.

These changes would be put in place by amending the Navigation Safety Regulations.

Interested persons can make comments concerning these changes until February 24, 2019.

The Government of Canada announced its intention to subject the substance hexanedioic acid, diisodecyl ester (CAS RN 27178-16-1), also known as DIDA, to Significant New Activities (SNAc) requirements, such as notification requirements, under the Canadian Environmental Protection Act, 1999 (SC1999,c33).

According to the Government of Canada, DIDA is notably used “as a plasticizer in low temperature electrical cables, as a processing aid, and as a [commercial] lubricant and lubricant additive […] however, a limited number of products are available to consumers, specifically motor oils, power steering fluids, aerosol lubricants and a lubricant product designed to stop oil leaks”.

This change would be implemented by transferring DIDA from part 1 to part 2 of the Domestic Substances List (DSL).

Interested persons can make comments concerning these changes until April 10, 2019.

The Government of British Columbia is seeking feedback to inform the implementation of its climate change plan, titled CleanBC (“the Plan”).

The Plan proposes several initiatives, which according to Fasken include:

• “A significant shift away from hydrocarbons and to electricity, including electrification of the gas fields of northeastern BC and processing facilities, and new electrical transmission lines to connect large loads, meaning an increase in electricity demand of 8% by 2030 and significantly more in the longer term.
• Incentives for a reduction in emissions from industrial sources, including using a portion of carbon tax revenue to provide financial incentives for certain industries to reduce emissions and a regulatory framework for carbon capture and storage.
• A push to reduce emissions from the transportation sector 20% by 2030, with 30% of light-duty vehicles being zero-emission by 2030, 100% by 2040, government incentives to buy zero-emission vehicles and support for new charging infrastructure around the Province.
• A plan to improve the energy efficiency of residential housing and commercial buildings by retrofitting, and to require all new buildings to be net-zero energy by 2032 and the phasing out of natural gas heating for commercial buildings.
• Increasing renewable fuels in consumer gas products, meaning a 15% renewable gas content requirement for natural gas, more biofuels at the pump, and an increase in the low carbon fuel standard from 10% to 20% by 2030.
• Diverting 95% of organic waste from landfills and converting it to new products.”

Legislative changes associated with the Plan will likely be introduced this year.

The Government is seeking feedback through a series of telephone town halls, “each focusing on a specific region of the province. All times are Pacific time, with closed captioning available:

• Wednesday, March 6 at 7 p.m. for the Lower Mainland and southwestern B.C.
• Wednesday, March 13 at 7 p.m. for the Kootenays, the Interior and northern B.C.
• Monday, March 25 at 7 p.m. for Vancouver Island and communities throughout the coast.
• Wednesday, March 27 at 7 p.m. for the Lower Mainland and southwestern B.C.”

A new framework for mineral prospecting, exploration, development and production in the Northwest Territories has been proposed.

According to the Government of the Northwest Territories, the proposed legislation would notably

• “[Allow government to establish] requirements relating to benefits for the people in the Northwest Territories”; and
• “[Require] benefit agreements for Indigenous governments and organizations for production projects that have attained a prescribed threshold size.”

This legislation would amend the Northwest Territories Lands Act. The legislation is proposed in a bill which, at the time of writing, had just passed second reading.

A wide-ranging set of amendments has been proposed in Ontario that could affect employment and labor law, the regulation of toxic substances, environmental rules applying to planning law, and technical standards.

With respect to employment and labor law, according to Baker & McKenzie LLP the amendments would notably revise the Employment Standards Act and the Labour Relations Act, 1995 to

• change employment standards concerning hours of work, such as overtime and excess hours;
• remove the requirement for employers to post information about employment rules and regulations; and
• designate some employers which are public bodies as “non-construction employers” for the purpose of labor laws, to be released from rules specifically concerning the construction sector.

Toxic substance rules would also be subject to major changes by a repeal of the Toxics Reduction Act, 2009 and the regulations under it.

On the subject of planning law, the proposed amendments would amend the Planning Act to allow municipalities to adopt “open-for-business planning by-laws”. These instruments would be planning by-laws for which various environmental and development provisions would not apply, such as obligations to conform to environmental plans, policy statements, development plans or growth plans under various acts, such as the Clean Water Act the Great Lakes Protection Act, 2015, Oak Ridges Moraine Conservation Act, 2001, and the Resource Recovery and Circular Economy Act.

Finally, with respect to technical standards, the proposed amendments would notably amend the Technical Standards and Safety Act, 2000 to remove upholstered or stuffed articles from the application of the act, and to allow for a new type of rules called alternate rules, which would be made by a director under the Act.

The amendments were proposed by means of a bill that, at the time of the publication of this bulletin, had reached second reading in the legislative assembly of Ontario.

The Government of Ontario announced its intention to change rules concerning life jackets and electrical equipment standards for rigs, to align with other Canadian jurisdictions. According to the Government of Ontario, those changes would

• “require that every worker who is exposed to the hazard of falling into water to wear a life jacket or personal floatation device that is appropriate in the circumstances to protect the worker from drowning”, instead of only having the choice to wear a life jacket; and
• require that “any electrical equipment installed on or after July 1, 2019 would need to comply with the latest (2002) version of the” Institute of Electrical and Electronics Engineers Recommended Practice for Electrical Installations on Shipboard Standard 45.

These changes would be implemented by amending Oil and Gas – Offshore.

Interested persons are invited to make comments concerning these changes by April 5, 2019.

The Government of Ontario announced its intention to repeal the Far North Act, 2010 to wind down the joint land planning process between the province and First Nations.

According to the Government of Ontario, this would be done in a way to

• “retain approved community based land use plans and provide them with substantially the same effect as under the Far North Act”;
• continue working on and adopt the joint plans that are at an advanced stage until December 21, 2020, such as those with the Marten Falls, Webequie, Eabametoong, Mishkeegogamang, Constance Lake, Deer Lake, and McDowell Lake First Nations;
• phase out the plans that are not at an advanced stage of planning;
• enable any future land planning “under the Public Lands Act, based on First Nations’ interests and government resources and priorities”; and
• preserve all other relevant legal requirements where applicable.

These changes would be implemented by repealing the Far North Act, 2010 and amending the Public Lands Act.

Interested persons are invited to make comments concerning these changes by April 11, 2019.

The Government of Ontario announced its intention to amend the rules relating to occupational health and safety for mines, mining plants, and mining developments in Ontario.

According to the Government of Ontario, these changes would be for matters of clarity and consistency, to harmonise requirements with other regulations under the Occupational Health and Safety Act, and notably to

• replace the non-destructive test by the one from the Construction Projects regulation;
• require that persons carrying out and interpreting non-destructive tests be certified;
• remove the requirement to file certain closing plans with the government in some situations;
• modify the way crane and hoist operators must be medically certified;
• remove labelling requirements for biological or chemical containers already covered by the WHMIS regulations;
• update references to industrial standards for wire rope testing, air heaters and compressed air breathing systems to their newer version;
• “allow a working face at a surface mine to exceed a vertical height of 25 metres if a professional engineer certifies that the safety of workers would not be endangered as a result”;
• “allow the regulators and manifolds of oxygen and acetylene cylinders to remain connected during transportation of these cylinders if the construction of the cylinder caps is such that remaining connected would not endanger worker health and safety during transportation”; and
• change the standard for the verification of wedge type attachments.

These changes would be implemented by amending Mines and Mining Plants.

Interested persons are invited to make comments concerning these changes by March 29, 2019.

The Government of Ontario announced its intention to modify rules concerning renewable content in fuels, such as ethanol, for gasoline and diesel.

According to the Government of Ontario, these changes would

• “require gasoline fuel suppliers to maintain an average of 15% renewable content in regular grade gasoline, by volume per calendar year as early as 2025”;
• “require renewable content used for compliance to emit significantly fewer greenhouse gas emissions than petroleum gasoline, on a lifecycle basis”;
• change the compliance formula to modify the life cycle assessment model; and
• align requirements concerning diesel with those concerning gasoline.

Some types of fuel would still remain ethanol free, or with a lower ethanol content, to allow for particular vehicles and equipments to be used.

These changes would be implemented by amending Ethanol in Gasoline and Greener Diesel – Renewable Fuel Content Requirements for Petroleum Diesel Fuel.

Interested persons are invited to make comments concerning these changes by March 29, 2019.

The Government of Ontario announced its intention to adopt new Emissions Performance Standards (EPS) to regulate industrial emissions as an alternative to the federal output based greenhouse gas pollution pricing system (OBPS).

The industrial sectors covered by this program would be the same as the ones covered by the federal OBPS. Additionally, the institutional sector, greenhouse operators and thermal energy suppliers could eventually be covered.

The program would be mandatory for those who produce emissions equivalent or superior to either 25,000 or 50,000 tons a year of CO2 equivalent. Those below this threshold but above 10,000 tons would be allowed to participate on a voluntary basis to obtain compliance units. While regulated facilities would need to meet the standards or pay for compliance units equivalent to their exceeding emissions, they would also be able to receive and accumulate compliance units, to trade between facilities or use in the future, by reducing non-regulated emissions voluntarily or exceeding the standards.

The standards would be fixed using different methods, depending on the situation or the sector, and their stringency would differ depending on a variety of factors, such as

• whether the emissions are coming from fixed processes or whether the emissions are not fixed;
• the industrial sector; or
• the risk of “carbon leakage”.

The government intends “to have the program in place by Summer 2019 and to have it apply to emissions as of January 1, 2019”, with compliance starting in December 2020.

These changes would be implemented by enacting a new regulation, and by making amendments to Greenhouse Gas Emissions: Quantification, Reporting and Verification.

Interested persons are invited to make comments concerning these changes by March 29, 2019.

The Government of Ontario announced its intention to amend energy and water efficiency requirements and metrics for certain products, to align them with those of the U.S. Department of Energy and Natural Resources Canada.

According to the Ontario Government, those changes would notably

• modify scope or labelling requirements for televisions, battery chargers, external power supplies, and dry-type transformers;
• allow alternative efficiency metrics for residential gas-fired storage water heaters, residential oil-fired storage water heaters, residential electric instantaneous water heaters, and furnace fans;
• update references to some standards; and
• clarify the scope of certain products.

These changes would be implemented by amending the Energy and Water Efficiency – Appliances and Products regulations.

Interested persons are invited to make comments concerning these changes by March 22, 2019.

The Ontario Government announced its intention to modify greenhouse gas (GHG) reporting requirements for petroleum product supplies, natural gas distributors and other large emitters, and is seeking comments on the strategy to adopt with respect to GHG reporting.

According to the Government of Ontario, these changes would notably

• “remove mandatory reporting and verification for petroleum product supply and natural gas distribution for the emissions from fuel they sell” (supply or distribute);
• “require third party verification of emissions reports to those […] [who] may have compliance obligations under the Emissions Performance Standards program”;
• remove verifications for some reporters, such as voluntary participants to the abolished Ontario Cap and Trade Program; and
• update the “Global Warming Potentials (GWP) for all emissions reporting methods” to the ones of the Intergovernmental Panel on Climate Change (IPCC) Fourth Panel.

Furthermore, the Government of Ontario is seeking opinions to the following questions:

• Should Ontario harmonize with the federal reporting requirements under the Greenhouse Gas Reporting Program?
• Should Ontario continue to require reporting of fuel distribution/supply reporting?
• Should third party verification of emissions requirements be maintained for the voluntary participants?

These changes would be implemented by amending the Greenhouse Gas Emissions: Quantification, Reporting and Verification regulation.

Interested persons are invited to make comments concerning these changes by March 8, 2019.

The Government of Quebec announced its intention to regulate the commercial harvest of Labrador tea in the domain of the State, to “secure supplies for the marketing industry of Labrador tea and also ensure sustainable use of the resource”, by considering it a forest management activity.

According to the Government of Quebec, theses changes would

• require a forestry permit to harvest Labrador tea for commercial purposes in the domain of the State;
• set the dues payable per harvested ton for the permit; and
• impose reporting requirements for permit holders;

These rules would be implemented by amending the Regulation respecting forestry permits.

Interested persons can submit comments until April 13, 2019.

The Government of Yukon is seeking feedback on proposed rules for off-road vehicle use on public land.

The proposed rules, according to the Government, “would cover all-terrain vehicles such as quads, dune buggies, mini-bikes, dirt bikes and any motor vehicle that is being driven elsewhere than a highway, regardless of whether it is registered under the Motor Vehicles Act”, but “would not apply to snowmobiles.”

Feedback will be accepted until April 8, 2019.