ARCHIVED — Vol. 147, No. 17 — April 27, 2013

Regulations Amending the Disposal at Sea Regulations

Statutory authority

Canadian Environmental Protection Act, 1999

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue

On June 29, 2012, the Jobs, Growth and Long-term Prosperity Act, which contains the key elements of the Government of Canada’s plan for Responsible Resource Development (RRD), received Royal Assent. (see footnote 1) The federal government’s comprehensive RRD initiative has as its core objective the creation of jobs and long-term growth in the Canadian economy, while strengthening environmental protection for future generations of Canadians. (see footnote 2) One of the ways the RRD initiative aims to accomplish this objective is to establish in regulations (i) legally binding timelines relating to permitting processes for resource development projects; and (ii) criteria that, if satisfied, would allow for permits for resource development projects to be renewed.

Major resource development projects can be supported by the development of new ports, or the maintenance of shipping lanes or waterways, both of which typically involve the loading for disposal and the disposal of dredged waste or other matter at sea (disposal at sea). The disposal at sea of spoils from dredging can also occur as part of offshore oil and gas projects when it is deemed necessary to dredge a depression in the seabed prior to installing a wellhead in order to protect the infrastructure from potential damage due to the scouring of icebergs along the seafloor. (see footnote 3)

The Minister of the Environment (the Minister) may, on application, issue permits for projects relating to disposal at sea, pursuant to the permitting provisions in section 127 of the Canadian Environmental Protection Act, 1999 (CEPA 1999 or the Act) and where the applicant meets the requirements of the Disposal at Sea Regulations (the Regulations). (see footnote 4) All permits currently issued by the Minister for projects involving disposal at sea are valid for one year and are not renewable, including permits issued for projects that are low-risk and routine in nature and that do not vary from year to year, such as maintenance dredging projects and projects involving the disposal of fish processing waste.

The recent amendments to CEPA 1999 introduced by the Jobs, Growth and Long-term Prosperity Act, and implemented through the RRD initiative, allow for timelines to be set out in regulations regarding the issuance of permits for disposal at sea. These statutory amendments also allow for permits to be renewed, subject to criteria set out in regulations, no more than four times and also allow for timelines to be set out for renewals. In order to stipulate in regulations the standards and criteria that apply to the issuance and renewal of permits for disposal at sea, modifications to the Regulations are required. Such modifications would allow for permits to be renewed for low-risk, routine projects relating to disposal at sea, reducing the number of permit applications required to be completed and thus generating savings in terms of time for regulated parties.

Background

Each year in Canada, three to four million tonnes of material, on average, are disposed of at sea. Most of this matter is dredged material that must be moved to keep shipping channels and harbours clear for navigation and commerce. Only those substances listed in Schedule 5 to CEPA 1999 may be considered for disposal at sea. These substances include dredged material; fish waste and other organic matter resulting from industrial fish processing operations; ships, aircraft, platforms and other structures; inert, inorganic geological matter; uncontaminated organic matter of natural origin; and bulky substances that are primarily composed of iron, steel, concrete or other similar matter. Discharges from land or from normal ship operations (such as bilge water) are not considered to be disposal at sea, but are subject to other controls.

Stakeholders are primarily the firms and government organizations that presently apply for permits for disposal at sea which are valid for one year and are not renewable. These stakeholders include, but are not limited to, dredging companies; excavation companies; fish processing plants; port authorities; and Small Craft Harbours administered by Fisheries and Oceans Canada. (see footnote 5) Other stakeholders include the public and environmental non-governmental organizations. In recent years, approximately 70 out of 90 of the projects for which permit applications for disposal at sea have been submitted by regulated parties to Environment Canada on a yearly basis have qualified as low-risk, routine projects that do not vary from year to year.

Amendments to CEPA 1999 with respect to disposal at sea

The amendments to CEPA 1999 brought forth by the Jobs, Growth and Long-term Prosperity Act, and executed through the federal government’s RRD plan, include various modifications to the statutory provisions regarding disposal at sea. In particular, the Governor in Council may, on the recommendation of the Minister, make regulations imposing legally binding time limits for issuing permits, and authorizing the Minister to extend any of those time limits, or decide that a time limit does not apply. With the amendments, the Minister may also renew a permit up to four times, subject to regulations made by the Governor in Council.

These amendments to CEPA 1999 also specify that, when issuing or renewing a permit for disposal at sea, or varying its conditions, the Minister shall now publish the text of the new or renewed permit issued, or the varied conditions, in the CEPA Environmental Registry, as opposed to the Canada Gazette, Part Ⅰ. Finally, the amendments to the Act reduce the amount of time that a person has to submit a notice of objection in regard to a permit from 30 to 7 days starting from the date of publication of the permit.

Objectives

The objectives of the proposed Regulations Amending the Disposal at Sea Regulations (hereinafter referred to as the “proposed Amendments”) are (i) to increase certainty in permitting processes for disposal at sea; and (ii) to reduce the administrative burden imposed on stakeholders due to permitting processes without affecting current environmental protection measures.

To achieve the first objective, the proposed Amendments would specify legally binding timelines with respect to the amount of time required by the federal government to issue permits. The proposed Amendments would achieve the second objective by setting out the criteria for determining which applications may be considered for renewal and would outline how the renewal process would function. By allowing permits to be renewed for low-risk, routine projects that do not vary from year to year, the proposed Amendments would reduce the overall number of permit applications required to be completed by regulated parties, resulting in time savings and decreases in administrative burden costs.

Description

The proposed Amendments would formalize service standards that are presently being met, in most cases, by Environment Canada and would specify the criteria that, if satisfied, would render permits eligible to be renewed. Under the proposed Amendments, a decision to issue or notification of a refusal to issue a permit would occur within a fixed timeline of 90 days or less for new permits, or 45 days or less for the renewal of eligible permits, from the date the Minister notifies the applicant that the application contains the necessary information. The Minister would be able to extend these timelines for periods during which Environment Canada officials are waiting for additional analysis that is necessary to allow the Minister to meet the requirements of CEPA 1999 or in which there are external processes (e.g. consultations) that must be completed prior to the decision to issue or deny a permit. Also, the regulated timelines would exclude the permit publication process and the publication period of seven days in the CEPA Environmental Registry.

Regulated timelines concerning permit applications and renewals

Under the proposed Amendments, an application would be considered for the Minister’s issuance or renewal of a permit, or refusal to issue or renew, when the permitting office of Environment Canada’s Disposal at Sea Program receives a completed application. The permitting office would notify the applicant about whether or not the information requirements of paragraph 127(2)(b) of CEPA 1999 have been met, after which point it would send a notice to the applicant. The Minister must then issue the permit or notify the applicant of a refusal to do so within 90 days, or renew or notify the applicant of a refusal to do so within 45 days.

The timelines in the proposed Amendments for the Minister’s issuance of a permit or notification of a refusal to do so do not apply for a period

  • required for additional analysis to allow the Minister to meet the relevant requirements of Schedule 6 to CEPA 1999 (“Assessment of waste or other matter”) or to allow any factors to be taken into account that the Minister considers necessary;
  • during which consultations occur which are required to allow the Minister to meet the relevant requirements of Schedule 6 to the Act or to allow any factors to be taken into account that the Minister considers necessary;
  • during which a decision to be made under an Act of Parliament or an aboriginal land claim agreement that could affect the Minister’s decision to issue or refuse to issue a permit is pending;
  • during which, under the Species at Risk Act, a consultation is required with a competent minister; or
  • during which the Minister is awaiting the submission by the applicant of any report required under a permit previously issued under section 127 of the Act.

Further, the timelines in the proposed Amendments for the Minister’s issuance of a permit or notification of a refusal to do so do not apply

  • if an applicant requests or agrees that the timelines do not apply; or
  • if an applicant makes changes to the information provided under paragraph 127(2)(b) of CEPA 1999 that could affect the Minister’s decision to issue or refuse to issue a permit.

When issuing a new permit, the Minister shall decide if the permit is renewable and the number of times that the permit is potentially renewable. A permit would only be eligible for renewal if the following conditions are satisfied:

  • the descriptions of the load and disposal sites must be consistent with the descriptions of the load and disposal sites in a permit that has been issued in the last five years;
  • the applicant must be in compliance with all permit conditions for valid permits issued under section 127 of CEPA 1999;
  • for the load site in respect of which the application for a permit is being made,
    • (i) any waste or other matter referred to in item 1 or 4 of Schedule 5 to the Act (“Waste or other matter”) [i.e. dredged material; or inert, inorganic geological matter] that has been assessed in any previous permit applications has been considered to be below the Lower Level of the National Action List, described in section 4 of the Regulations, for a minimum of three sets of test results over a period of at least five years ending on the day on which the most recent permit for the load site was issued,
    • (ii) for the period referred to in subparagraph (i) above, there have been no test results for waste or other matter taken from the load site above the Lower Level of the National Action List, described in section 4 of the Regulations, and
    • (iii) any description of waste or other matter referred to in item 2, 5 or 6 of Schedule 5 to the Act (i.e. fish waste and other organic matter resulting from industrial fish processing operations; uncontaminated organic matter of natural origin; or bulky substances that are primarily composed of iron, steel, concrete or other similar matter) is consistent with those descriptions in applications in respect of permits issued in the period of five years preceding the date of the application; and
  • the applicant requested when making an application for a permit that the permit be eligible for renewal and the number of renewals desired.

Permits would not be renewed automatically. The Disposal at Sea Program’s permitting office would notify the applicant about whether or not the permit is eligible to be renewed and, if applicable, how many times it may be renewed. When considering whether to renew an eligible permit, the Minister would consider whether modifications have been made to any of the information required under paragraph 127(2)(b) of CEPA 1999 that enabled the Minister to issue the original permit. If any of this information has changed, a new permit application would be required and subject to the timeline of 90 days for the issuance or refusal of a permit.

“One-for-One” Rule

In 2012, the federal government implemented the “One-for-One” Rule to reduce the administrative burden carried by businesses that operate in Canada and engage in commercial activities related to the supply of services or property (which includes goods). Under the Rule, regulatory changes that impose new administrative burden costs on business must be counterbalanced or offset, within two years, with an equivalent reduction in administrative burden costs from the current stock of regulations. Additionally, federal government departments are required to remove an existing set of regulations from their current stock of regulations, within two years, when entirely new regulations impose new administrative burden costs on business.

The “One-for-One” Rule would not apply to the proposed Amendments because they are modifications to the Regulations, and they are projected to result in a decrease in administrative burden costs. Specifically, stakeholders able to renew permits for low-risk, routine projects relating to disposal at sea, by meeting the renewal criteria specified in the proposed Amendments, would require marginally fewer administrative resources than those resources required under current permitting practices. Overall, it is projected that the approximately 55 stakeholders able to renew permits for low-risk, routine projects — excluding non-profit organizations such as Small Craft Harbours — would realize incremental reductions in annualized average costs in the order of $3,000, or $55 per stakeholder, over a 10-year period beginning in 2013 (2012 Canadian dollars; present value base year of 2012; 7% discount rate). The net present value of incremental administrative burden savings for the existing stakeholders during this period is projected to be $22,000.

Small business lens

In 2012, the federal government also implemented the “small business lens.” The purpose of this lens is to drive better analysis of small business realities and consultation at the earliest stages of regulatory design, and to drive the consideration of risk-based alternate compliance approaches that minimize costs for small businesses operating in Canada. The proposed Amendments would not impose any incremental costs on industry, including the estimated 60 small businesses that compose two-thirds of the regulated parties applying for permits for disposal at sea in Canada on a yearly basis. As a result, the small business lens would not apply to the proposed Amendments.

Consultation

It is expected that industry stakeholders would support the introduction of greater certainty in the permitting process by means of legally binding timelines relating to the issuance and renewal of permits. Opposition from stakeholders is expected to be low, considering that the overall rigour of the permitting process would remain intact. No reduction in environmental protection measures is anticipated. Complete permit reviews would still take place within the standard timelines, and permit renewals would only be available for projects meeting clearly identified criteria.

The proposed Amendments would implement legislative authorities in CEPA 1999 with respect to permits for disposal at sea, as modified by the Jobs, Growth and Long-term Prosperity Act and executed by means of the Government of Canada’s RRD initiative. Prior to publication of the proposed Amendments in the Canada Gazette, Part Ⅰ, no formal stakeholder consultations were held, given that the proposed Amendments are not expected to impose any incremental administrative or compliance costs on the public, the federal government or industry stakeholders. Environment Canada’s Disposal at Sea Program is committed to directly contacting regulated parties and stakeholders from environmental non-governmental organizations to notify them of the opportunity to raise any concerns or suggestions during the public comment period of 60 days, which immediately follows the publication of the proposed Amendments in the Canada Gazette, Part Ⅰ.

Rationale

The proposed Amendments would provide legally binding timelines concerning the amount of time required by Environment Canada to issue or renew a specific permit for disposal at sea. This specification of service standards in the regulatory text would offer certainty to stakeholders with regard to the planning of resource projects. Further, the regulated timelines are not expected to impact Environment Canada’s Disposal at Sea Program, since the Program already meets its non-binding service standards, which, from a Government operations perspective, would not significantly change due to the proposed Amendments.

The proposed Amendments would also stipulate the criteria that a project relating to disposal at sea would have to satisfy in order to be eligible for renewal. The risk to the environment posed by the adoption of a renewable permit process is expected to be small or negligible. Permit renewals would only be granted for projects meeting well-specified criteria. In addition, permit renewal applicants would be required to confirm in their applications for renewal that conditions possibly affecting the environmental impact of the project in question have not changed since the initial permit assessment. These practices would mirror those presently being implemented by Environment Canada under which environmental assessments of low-risk, routine projects are often undertaken by applicants over a multi-year period.

As a result of the proposed Amendments, there would be a modest decrease in the information and time requirements involved in obtaining permit renewals for disposal at sea for low-risk, routine projects that do not vary from year to year. These incremental savings in administrative burden costs would be limited by the number of project permits that qualify for renewal. Given the measures that would be implemented to maintain existing levels of environmental protection, and the estimated reductions in administrative burden costs, the net effect of a renewable permit process introduced by the proposed Amendments is expected to be positive.

Implementation, enforcement and service standards

The proposed Amendments would come into force on the day on which they are registered. (see footnote 6) They would not alter the manner in which the Regulations are enforced, nor would they result in the implementation of any new program or activity.

Since the base of parties regulated by the Regulations is well known and most of them are regular permit holders, compliance promotion would consist of one-to-one communications between regulated parties and regional staff of Environment Canada’s Disposal at Sea Program. In order to communicate with the public and future stakeholders who may not presently be regulated by the Regulations, the Disposal at Sea Program would publish fact sheets and information bulletins on its Web site. (see footnote 7)

Contacts

Linda Porebski
Chief
Marine Programs
Environmental Assessment and Marine Programs Division
Environmental Protection Operations Directorate
Environmental Stewardship Branch
Environment Canada
351 Saint-Joseph Boulevard
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-4341
Fax: 819-953-0913
Email: SEA-MER@ec.gc.ca

Yves Bourassa
Director
Regulatory Analysis and Valuation Division
Economic Analysis Directorate
Strategic Policy Branch
Environment Canada
10 Wellington Street
Gatineau, Quebec
K1A 0H3
Telephone: 819-953-7651
Fax: 819-953-3241
Email: RAVD.DARV@ec.gc.ca

PROPOSED REGULATORY TEXT

Notice is given, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), that the Governor in Council, pursuant to subsection 135(1) (see footnote c) of that Act, proposes to make the annexed Regulations Amending the Disposal at Sea Regulations.

Any person may, within 60 days after the date of publication of this notice, file with the Minister of the Environment comments with respect to the proposed Regulations or a notice of objection requesting that a board of review be established under section 333 of that Act and stating the reasons for the objection. All comments and notices must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be sent to Linda Porebski, Chief, Marine Programs, Environmental Assessment and Marine Programs Division, Environmental Stewardship Branch, Environment Canada, 351 Saint-Joseph Blvd, Gatineau, Quebec K1A 0H3 (tel.: 819-953-4341; fax: 819-953-0913; e-mail: SEA-MER@ec.gc.ca).

A person who provides information to the Minister of the Environment may submit with the information a request for confidentiality under section 313 of that Act.

Ottawa, April 18, 2013

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE DISPOSAL AT SEA REGULATIONS

AMENDMENT

1. The Disposal at Sea Regulations (see footnote 8) are amended by adding the following after section 8.1:

PERMITS

Notice — application

8.2 (1) When an application meets the requirements of paragraph 127(2)(b) of the Act, the Minister shall notify the applicant in writing.

Time limit

(2) The Minister shall either issue or notify the applicant of the refusal to issue a permit under section 127 of the Act within the 90-day period after the date of the notice.

Suspension of period

(3) The period referred to in subsection (2) does not include any period

  • (a) required for additional analysis that is necessary to allow the Minister to meet the requirements of subsection 127(3) of the Act;
  • (b) during which consultations that are necessary for the Minister to meet the requirements of subsection 127(3) of the Act are carried out;
  • (c) during which a decision made under an Act of Parliament or an Aboriginal land claim agreement, that could affect the Minister’s decision to issue or refuse to issue a permit under section 127 of the Act is pending;
  • (d) during which consultations are carried out by the Minister under section 77 of the Species at Risk Act; and
  • (e) during which the Minister is awaiting the submission by the applicant of any report required under a permit previously issued under section 127 of the Act.

Non-application

(4) The period referred to in subsection (2) does not apply

  • (a) if an applicant requests or agrees that it does not apply; or
  • (b) if an applicant makes changes to the information provided under paragraph 127(2)b) of the Act that could affect the Minister’s decision to issue or refuse to issue a permit.

Notice — eligibility for renewal

8.3 If the Minister issues a permit under section 127 of the Act, the Minister shall notify the applicant whether the permit is eligible to be renewed and of the number of times it may be renewed which may be no more than, subject to the number of renewals permitted under subsection 127(1) of the Act, the number of renewals requested in the application.

Eligibility

8.4 A permit is eligible to be renewed if

  • (a) the descriptions of the load and disposal sites in the permit are consistent with the descriptions of the load and disposal sites in a permit that has been issued in the last five years;
  • (b) the applicant is in compliance with all permit conditions for valid permits issued under section 127 of the Act;
  • (c) for the load site in respect of which the application for a permit is being made
    • (i) any waste or other matter referred to in item 1 or 4 of Schedule 5 to the Act that has been assessed in any previous permit applications has been considered to be below the Lower Level of the National Action List under section 4 for a minimum of three sets of test results over a period of at least five years ending on the day on which the most recent permit for the load site was issued;
    • (ii) there have been no test results for waste or other matter taken from the load site for the period referred to in subparagraph (i) above the Lower Level of the National Action List under section 4, and
    • (iii) any description of the waste or other matter referred to in item 2, 5 or 6 of Schedule 5 to the Act is consistent with those descriptions in applications in respect of permits issued in the period of five years preceding the date of the application; and
  • (d) the applicant requested when making an application for a permit that the permit be eligible for renewal and the number of renewals desired.

Time limit — application for renewal

8.5 (1) The holder of a renewable permit shall apply for the renewal of the permit at least 90 days before it expires.

Notice — application

(2) When an application for renewal meets the requirements of paragraph 127(2)(b) of the Act, the Minister shall notify the applicant in writing.

Time limit

(3) The Minister shall either renew or notify the applicant of their decision to refuse to renew a permit within the 45-day period after the date of the notice.

COMING INTO FORCE

S.C. 2012, c. 19

2. These Regulations come into force on the day on which subsection 161(2) of the Jobs, Growth and Long-term Prosperity Act, chapter 19 of the Statutes of Canada, 2012, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

[17-1-o]

  • Footnote 1
    The long title of the Jobs, Growth and Long-term Prosperity Act is An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.
  • Footnote 2
    “Responsible Resource Development.” Government of Canada: actionplan.gc.ca/en/initiative/responsible-resource-development (accessed January 2013).
  • Footnote 3
    Dredging is an excavation activity or operation that is usually carried out at least partially underwater, in shallow seas or freshwater areas, with the purpose of collecting sediments from the bottom of the water body in question and disposing them at a different location. The technique of dredging is often employed to keep waterways navigable.
  • Footnote 4
    Disposal at Sea Regulations: laws-lois.justice.gc.ca/eng/regulations/SOR-2001-275/index.html (accessed January 2013).
  • Footnote 5
    Small Craft Harbours is a nationwide program of Fisheries and Oceans Canada. “Small Craft Harbours.” Fisheries and Oceans Canada: www.dfo-mpo.gc.ca/sch-ppb/home-accueil-eng.htm (accessed January 2013).
  • Footnote 6
    An Order in Council bringing into force the amendments to CEPA 1999 with respect to permits for disposal at sea would come into effect before or at the same time as the proposed Amendments.
  • Footnote 7
    “Disposal at Sea Publications.” Environment Canada: www.ec.gc.ca/iem-das/default.asp?lang=En&n=F25958B2-1 (accessed January 2013).
  • Footnote a
    S.C. 2004, c. 15, s. 31
  • Footnote b
    S.C. 1999, c. 33
  • Footnote c
    S.C. 2012, c. 19, s. 161(1) and (2)
  • Footnote 8
    SOR/2001-275