Amendments to the Regulations Designating Physical Activities

by Bennett Jones LLP
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On April 12, 2013, the Canadian Environmental Assessment Agency released its Draft Regulations Amending the Regulations Designating Physical Activities (the Amended Regulations). According to the Regulatory Impact Analysis Statement published concurrently, the Amended Regulations are proposed in an effort to ensure that major projects with the greatest potential for significant adverse environmental effects in areas of federal jurisdiction are designated physical activities. Significant changes to the former Schedule of Physical Activities in the Regulations Designating Physical Activities (the Former Regulations) are summarized below.1

In general, and where applicable, the Amended Regulations increase thresholds at which expansions of certain activities will trigger designation from 35 percent to 50 percent. In addition, certain activities that were formerly subject to designation have been removed, while several new activities have been added as subject to designation.

New Designations

New designation for expansion of oil sands mine:

Section 9 of the Amended Regulations designates the expansion of an existing oil sands mine that would result in an increase in the area of mine operations of 50 percent or more and a total bitumen production capacity of 10 000 m3/d.

New designation for mines for diamonds and apatite:

Sections 16(c), and (d)-(g) of the Amended Regulations designate the construction, operation, decommissioning and abandonment of mines diamonds and apatite. Certain other mining operations designated under the previous regulations are removed. Note that rare earth element mines are now designated in the same category as gold mines, with a threshold capacity of 600 t/day.2 Offshore metal mines are no longer separately designated.

New designation for bridges and tunnels:

Section 28 of the Amended Regulations designates the construction, operation, decommissioning and abandonment of international or interprovincial bridges and tunnels, as well as bridges over the St. Lawrence Seaway.

Amended Designations

Amended designation for Nova Scotia and Newfoundland offshore exploratory wells:

Sections 10 to 12 of the Amended Regulations amend the designations applicable to offshore exploration. The Amended Regulations designate the drilling, testing, completion, suspension and abandonment of first exploratory wells and exploratory wells as authorized by certain prescribed licences.

Amended designation for the construction, operation, decommissioning and abandonment of railway lines and highways:

Amended Regulations section 25 amends Former Regulations section 28, by adding a designation for railway yards, and removing the designation for an all-season public highway that leads to a community that lacks all-season public highway access.

Threshold for mine expansions relates to area of mine operations:

The threshold for mine expansions is amended to refer to increases in the area of mine operations, rather than only production capacity.3

Amended designation for NEB-regulated pipelines:

The threshold for pipelines is reduced from 75 km on new right-of-way, to 40 km of new pipe, regardless of whether it is on new right-of-way.

Designations Repealed

No designation for water extraction facilities:

Former Regulations section 8, designating the construction, operation, decommissioning and abandonment of a facility for the extraction of 200,000 m3/a, or a 35-percent expansion of said facility, has been removed.

No designation for expansion of heavy oil or oil sands processing facility:

Former Regulations sections 9(a) and 12, designating the construction, operation, decommissioning and abandonment, and the expansion of a heavy oil or oil sands processing facility, has been removed.

No designation for oil and gas pipeline or transmission line on new right-of-way:

Former Regulations section 14(a), designating the construction, operation, decommissioning and abandonment of an oil and gas pipeline more than 75 km in length on a new right of way, has been removed.4 Construction of a new oil and gas pipeline in a wildlife area or migratory bird sanctuary continues to be designated in the Amended Regulations, section 1.

Former Regulations section 5, designating the construction, operation, decommissioning and abandonment of an electrical transmission line of certain characteristics on a new right-of-way has been removed from the portion of the Amended Regulations relating to CEAA, but persists at section 39 under the purview of the National Energy Board.

No designation for pulp or pulp and paper mills:

Former Regulations sections 18 and 19, designating the construction, operation, decommissioning, abandonment, and the expansion of pulp and pulp and paper mills have been removed.

No designation for certain industrial facilities, inter alia:

Former Regulations section 20 designating the construction, operation, decommissioning and abandonment, and the expansion of certain facilities, including those for the manufacture of metal and chemical products5 has been removed.

Designation Thresholds Increased

Designation of tidal power generating facilities is increased:

The construction, operation, decommissioning and abandonment6 of tidal power generating facilities (in-stream with a capacity of 50 MW, or other, with a capacity of 5 MW) are designated. The threshold for designation of an expansion for such facilities is amended from a 35-percent to 50-percent increase in production capacity.7

Threshold for designation of a dam or dyke expansion is increased:

The threshold for designation of an expansion of an existing dam or dyke is amended from a 35-percent to 50-percent increase in total surface area, that would exceed the annual mean surface area of a natural water body by 1,500 ha or more.8

Threshold for designation of expansion of structure for diversion of water increased:

The Amended Regulations designate the expansion of a structure for the diversion of 10,000,000 m3/year or more from a natural water body into another natural water body by 50-percent diversion capacity, rather than the previous 35 percent.9

Threshold for designation of expansion of oil refinery, liquid petroleum production facilitiy, sour gas processing facility, LNG facility, and petroleum storage facility increased:

The threshold for designation of an expansion of a variety of oil and gas facilities is amended from a 35-percent to 50-percent increase in production capacity.10 Note also that the threshold for LNG storage facilities is increased by 10 percent.11

Threshold for designation of expansion of stone quarry or sand or gravel pit increased:

The Amended Regulations designate the expansion of a stone quarry or sand or gravel pit to 50-percent increase in production capacity and a total production capacity of 1,000,000 t/year or more, rather than the previous 35 percent.12

Threshold for designation of expansion of hazardous waste disposal facility increased:

The Amended Regulations designate the expansion of a hazardous waste disposal facility to 50-percent increase in production capacity, rather than the previous 35 percent.13

Transitional Provisions

The proposed transitional provisions indicate that the Amended Regulations will not apply to physical activities that were not designated under the Former Regulations and that have begun (the environment has been altered) at the time that the amendments come into force. The amended regulations will also not apply to physical activities that were not designated under the Former Regulations and that have been permitted by federal authority, or to physical activities for which an assessment has commenced.

The transitional provisions in the Amended Regulations do not clearly state what effect the Amended Regulations will have on activities that were designated under the Former Regulations, and have started the assessment process, but are no longer listed. The Regulatory Impact Analysis Statement indicates that the screening process of such an activity would terminate because the project would no longer be a “designated project”.

Next Steps

The Amended Regulations are currently in draft form, for public consultation. The Amended Regulations will be published in the Canada Gazette on April 20, 2013, followed by a 30-day public comment period.


Notes

  1. Note that amendments have also been made to sections relating to the Nuclear Safety Commission, and sections relating to the National Energy Board. These amendments have not been comprehensively summarized in this document.
  2. See Amended Regulations, section 16(c).
  3. Ibid, section 17
  4. Note that the designation at section 38 of the Former Regulations (relating to the National Energy Board) for construction of an oil and gas pipeline in a new right of way has also been removed and replaced by section 45 of the Amended Regulations.
  5. Supra, note 2, section 20(d)
  6. Ibid, section 2
  7. Ibid, section 3
  8. Ibid, section 5
  9. Ibid, section 6 and 7
  10. Ibid, section 14
  11. Ibid, section 13(d)
  12. Ibid, section 17(g)
  13. Ibid, section 30

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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