ARCHIVED — Vol. 148, No. 4 — February 12, 2014

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SOR/2014-12 January 29, 2014

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Regulations Amending the Disposal at Sea Regulations

P.C. 2014-22 January 28, 2014

Whereas, pursuant to subsection 332(1) (see footnote a) of the Canadian Environmental Protection Act, 1999 (see footnote b), the Minister of the Environment published in the Canada Gazette, Part I, on April 27, 2013, a copy of the proposed Regulations Amending the Disposal at Sea Regulations, substantially in the annexed form, and persons were given an opportunity to file comments with respect to the proposed Regulations or to file a notice of objection requesting that a board of review be established and stating the reasons for the objection;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to subsection 135(1) (see footnote c) of the Canadian Environmental Protection Act, 1999, makes the annexed Regulations Amending the Disposal at Sea Regulations.

REGULATIONS AMENDING THE DISPOSAL AT SEA REGULATIONS

AMENDMENT

1. The Disposal at Sea Regulations (see footnote 1) 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 applying for the permit that the permit be eligible for renewal and indicated 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.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

1. Issues

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 2) 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 3) One of the ways the 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, will 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 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 infrastructure from potential damage due to the scouring of icebergs along the seafloor. (see footnote 4)

The Minister of the Environment (the Minister) may, on application, issue permits for projects relating to disposal at sea, pursuant to the permitting provisions described in Part 7, Division 3, of the Canadian Environmental Protection Act, 1999 (CEPA 1999 or the Act), and where the applicant meets the requirements of the Act and the Disposal at Sea Regulations (the Regulations). (see footnote 5) All permits currently issued by the Minister for projects involving disposal at sea are valid for at most 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 legislative 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 will allow for permits to be renewed for low-risk, routine projects relating to disposal at sea, reducing the length and complexity of permit applications required to be completed and thus generating savings in terms of time for regulated parties.

2. Background

Each year in Canada, an average of three to four million tonnes of material 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 (“Waste or other matter”) 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 legislative controls.

Permit applicants impacted by the Regulations are primarily the firms and government organizations that presently apply for permits for disposal at sea which are valid for at most one year and are not renewable. These permit applicants include dredging companies, excavation companies, fish processing plants, port authorities, and Small Craft Harbours administered by Fisheries and Oceans Canada. (see footnote 6) 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 legislative 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 permit or permit renewal, or the modified conditions, in the CEPA Environmental Registry, as opposed to publishing this text in the Canada Gazette, as previously required by the Act. Finally, the amendments to the Act reduce from 30 to 7 days the period between the date of publication of a new permit or permit renewal and the date on which the permit can be used for the first time, thus allowing operations involving disposal at sea to begin more quickly.

3. Objectives

The objectives of the Regulations Amending the Disposal at Sea Regulations (the Amendments) are (i) to increase predictability in permitting processes for disposal at sea; and (ii) to reduce the administrative burden imposed on applicants due to permitting processes without affecting current environmental protection measures.

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

4. Description

The Amendments will formalize service standards that are presently being met, in most cases, by Environment Canada and will specify the criteria that, if satisfied, will render permits eligible to be renewed. Under the Amendments, the decision to issue a permit or a notification of a refusal to issue a permit will occur within a timeline of 90 days or less from the date the Minister notifies the applicant that the application for a new permit contains the necessary information. The decision to renew a permit or a notification of a refusal to renew a permit will occur within a timeline of 45 days or less from the date the Minister notifies the applicant that the application for a permit renewal contains the necessary information. These timelines will not include 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 during 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 will 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 Amendments, a permit application will be considered for the Minister’s issuance, renewal, 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 will notify the applicant when the information requirements of paragraph 127(2)(b) of CEPA 1999 have been met. The Minister must then issue the permit or notify the applicant of a refusal to do so within 90 days, or renew the permit or notify the applicant of a refusal to do so within 45 days.

The timelines in the Amendments for the Minister’s issuance of a permit or notification of a refusal to do so do not apply to 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 the terms of a permit previously issued under section 127 of the Act.

Further, the timelines in the 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 will 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 is in compliance with all permit conditions for valid permits issued to the applicant 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 (i.e. dredged material or inert, inorganic geological matter) that has been assessed in any previous permit application has been considered to be below the Lower Level of the National Action List referred to in 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 above in subparagraph (i), 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 referred to in 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 will not be renewed automatically. The Disposal at Sea Program’s permitting office will notify the applicant concerning 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 will consider whether modifications have been made to any of the information required under 127(2)(b) of CEPA 1999 that enabled the Minister to issue the original permit. If any of this information has changed, the Minister may refuse to issue a renewal and a new permit application will be required and subject to the timeline of 90 days for the issuance or refusal of a new permit.

5. “One-for-One” Rule

The Amendments are modifications to the Regulations and are projected to result in a decrease in administrative burden costs. Specifically, the applicants that are expected to be able to renew permits for low-risk, routine projects relating to disposal at sea, by meeting the renewal criteria specified in the Amendments, will require marginally fewer administrative resources than those resources required under current permitting practices. The estimated savings are calculated by employing two key assumptions, as described below:

  • (1) In 2013, permit applicants (approximately 80) will each need an average of 30 minutes to become familiar with the Amendments. (see footnote 7)
  • (2) Approximately 55 applicants are expected to be able to renew permits four out of every five years. Compared to the time these applicants currently require for the completion and approval of the application for a new permit, they will each save an average of 2.5 hours four out of every five years during the completion and approval of the application for a permit renewal.

Altogether, it is projected that, due to the Amendments, affected applicants will collectively realize incremental reductions in annualized costs in the order of $3,000, or $55 per affected applicant, 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 all permit applicants during this period is projected to be $22,000.

6. Small business lens

The Amendments will not impose any notable additional costs on permit applicants, including the estimated 60 small businesses that apply for permits for disposal at sea in Canada on a yearly basis. As a result, the small business lens does not apply to the Amendments.

7. Consultation

On April 27, 2013, the proposed Amendments were published in the Canada Gazette, Part I, for a public comment period of 60 days. Officials from the Disposal at Sea Program notified permit holders and stakeholders from environmental non-governmental organizations through email of the opportunity to raise any concerns or suggestions. One comment was received from a permit holder concerning the proposed Amendments.

Comment: The permit holder indicated support for the new permitting process to be introduced by the Amendments and substantiated the anticipated reductions in administrative burden costs. The permit holder also sought clarification on the necessity for the timeline of 90 days for the issuance of new permits meeting the application criteria, especially for those applications for new permits relating to low-risk, routine projects that do not vary from year to year. Further, the permit holder suggested removing the requirement to publish a proposed new permit or permit renewal.

Response: The timeline of 90 days applies to all new permit applications, including those for low-risk, routine projects that do not vary from year to year, in order to allow the Minister to determine whether any given project meets the criteria for both the issuance of a new permit as well as the eligibility for a potential permit renewal. A shortened timeline of 45 days is being introduced by the Amendments for the renewal of an eligible permit. In addition, the timelines set out in the Amendments do not preclude the Minister from issuing a new permit, permit renewal, or notification of a refusal to issue a new permit or permit renewal, in a shorter period of time, if the Minister determines that it is feasible to do so. Lastly, the amendments to CEPA 1999 brought forth by the Jobs, Growth and Long-term Prosperity Act do not remove the requirement to publish a proposed new permit or permit renewal, but they shorten the period between the date of publication of a new permit or permit renewal and the first date on which the permit can be used from 30 to 7 days.

8. Rationale

The Amendments will provide legally binding timelines concerning the amount of time available to Environment Canada to issue or renew a particular permit for disposal at sea. This specification of service standards in the regulatory text will offer certainty to permit applicants with regard to the planning of resource projects. Further, the regulated timelines are not expected to impact the Disposal at Sea Program, since the Program already meets its non-binding service standards, which, from a federal government operations perspective, will not significantly change once the Amendments come into effect.

The Amendments will also stipulate the criteria that a project relating to disposal at sea will have to satisfy in order to be eligible for renewal. The risk to the environment posed by the adoption of a renewable permitting process is expected to be small or negligible. Permit renewals will only be granted for projects meeting well-specified criteria. In addition, permit renewal applicants will be required to demonstrate in their applications that conditions possibly affecting the environmental impact of the project in question have not changed since the initial permit assessment.

As a result of the Amendments, there will 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 will be limited by the number of project permits that qualify for renewal. Given that the Amendments will maintain existing levels of environmental protection, while reducing administrative burden costs incurred by regulated parties, the net effect of the new permitting process to be introduced by them is expected to be positive.

9. Implementation, enforcement and service standards

The Amendments will come into effect on the day fixed by order of the Governor in Council on which the amendments to CEPA 1999 with respect to permits for disposal at sea, introduced by the Jobs, Growth and Long-term Prosperity Act, come into force. However, if the Amendments are registered after that day, they will come into effect on the day on which they are registered.

The Amendments will neither alter the manner in which the Regulations are enforced, nor result in the implementation of any new program or activity. Since the majority of parties regulated by the Regulations are well known and most of them are regular permit holders, compliance promotion will consist of verbal and written notifications and explanations, as appropriate, provided directly to regulated parties by officials from the Disposal at Sea Program. In order to communicate with the public and future permit applicants who may not presently be regulated by the Regulations, fact sheets and information bulletins will be published on the Disposal at Sea Program’s Web site. (see footnote 8)

10. 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

  • 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 1
    SOR/2001-275
  • Footnote 2
    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 3
    “Responsible Resource Development.” Government of Canada: http://actionplan.gc.ca/en/initiative/responsible-resource-development (accessed in August 2013).
  • Footnote 4
    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 5
    Disposal at Sea Regulations: http://laws-lois.justice.gc.ca/eng/regulations/SOR-2001-275/index.html (accessed in August 2013).
  • Footnote 6
    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 in August 2013).
  • Footnote 7
    The number of permit applicants impacted by the Amendments excludes non-profit organizations.
  • Footnote 8
    “Disposal at Sea Publications.” Environment Canada: www.ec.gc.ca/iem-das/default.asp?lang=En&n=F25958B2-1 (accessed in August 2013).