The Ontario Ministry of Environment (MOE) recently posted proposed regulations to the Environmental Activity and Sector Registry (EASR) for public comment. The proposals include a regulation that would see small ground-mounted solar projects added to the list of prescribed activities and sectors covered by the EASR to encourage local electricity generation including community-based projects.
The Context – The Streamlined Approvals Process in Ontario
In 2011, the MOE implemented a program under the Environmental Protection Act (EPA) to modernize the environmental approvals process in Ontario.
Specifically, the EPA was amended at that time to change the name of and process for obtaining certain of the approvals issued under sections 9 and 27 of the EPA and section 53 of the Ontario Water Resources Act. Instead of being called “certificates of approval” such approvals are now called “environmental compliance approvals.” Notably, and subject to certain exceptions, the requirement to obtain an environmental compliance approval does not apply if the activity has been prescribed by the regulations as an activity in respect of which a registration under the EASR is required.
The Environmental Activity and Sector Registry
The EASR is a public online searchable registry, which allows persons to register activities prescribed by O. Reg. 245/11. If an activity has been prescribed by O. Reg. 245/11, then s. 20.21(1) of the EPA prohibits persons from engaging in the activity unless the activity has been registered in the EASR, the Director has provided a confirmation of registration, the registration is in effect and the person is engaging in the activity in accordance with the rules prescribed by the regulation.
As a result, except where an order is issued by the Director specifying that the EASR does not apply to an activity, the EASR requires companies to register prescribed activities in a public, web-based registry rather than following the generally more burdensome and time-consuming environmental compliance approval processes. The registry is essentially a “permit by rule and registration” system intended for routine and well-understood activities that pose limited environmental impact.
Those who satisfy the criteria for prescribed activities under the EASR are required to register and comply with specified requirements. Generally, these requirements include design specifications, pollution control measures and best management practices for each prescribed activity. Certain activities (heating systems, standby power systems and automotive refinishing) have already been prescribed for the purposes of the EASR, as set out in O. Reg. 245/11.
Proposed EASR Regulation for Small Ground-Mounted Solar Facilities
The proposed amendments to the EASR will see eligible small ground-mounted solar projects removed from the EPA’s Renewable Energy Approval (REA) process (O. Reg. 359/09) and added to the list of activities prescribed for the purposes of the EASR. The MOE has proposed these changes to address regulatory barriers to the development of low-impact and environmentally beneficial solar projects.
The regulation, as proposed, will require the registration of all eligible small ground-mounted solar facilities prescribed as such under the EASR. “Solar facilities” are defined as having the same meaning as in O. Reg. 359/09 regarding the REA process.
Proposed prescribed activities include the construction, installation, use, operation, changing or retiring of a solar facility that meets all of the criteria and that is located on a site that meets particular specifications.
Eligibility requirements for a solar facility include a name plate capacity of greater than 10 kW and less than or equal to 500 kW. Facilities would further be required to meet specified design criteria including: (i) ensuring that no noise generating equipment has a sound power level greater than 90 dBA; and (ii) meeting minimum setbacks from noise receptors to account for noise emissions.
The solar facilities must also meet facility location and siting criteria to mitigate environmental impacts. For instance, either:
the area of the property on which the facility is located must not exceed four hectares and the facility must be located on a property that is zoned for industrial, commercial and institutional uses and: (i) is currently being so used; or (ii) there is a contaminant in the soil at the property, the concentration of which exceeds the applicable soil standard for industrial, commercial and institutional property use under O. Reg. 153/04; or
the area of the property on which the facility is located must not exceed three hectares and the facility must be located on a property that is: (i) used for farming operation activities as defined in Regulation 347 (General – Waste Management); and (ii) not part of a settlement within the meaning of the Planning Act.
If eligibility requirements are not met, the facility would remain subject to the EPA’s REA process.
Additionally, the regulation will introduce operating requirements to ensure registered solar facilities are properly maintained and operated, including requirements to retain records for routine maintenance, repairs, inspections and environmental complaints. Registrants will also be required to provide written notice in advance of registering a facility under the EASR to local municipalities and neighbouring property owners, as well as companies operating an oil or natural gas pipeline if the pipeline right of way is located within 200 metres of the facility location.
To maintain compliance under the proposed regulation the MOE has said that it will audit registrants on regulatory requirements using existing tools including compliance assistance, inspections, and orders in accordance with the MOE’s current Compliance Policy.
As currently drafted, the regulation may give rise to creative planning and structuring of solar generation projects if the EASR process is viewed by developers as sufficiently attractive compared to the REA process, assuming the project can be sized appropriately and would otherwise qualify for the EASR process.
The changes being considered are separate from the Ontario Power Authority’s Feed-in Tariff (FIT) program, but are intended to align with the program. The FIT program offers 20-year fixed price power purchase agreements to eligible renewable energy projects across Ontario.
The proposed regulation remains open for comment until September 8, 2012. If passed, the regulation will offer businesses and community groups working with small ground-mounted solar facilities access to a streamlined process which will generate significant efficiencies in their environmental compliance and approval measures.