A new environmental authorization scheme is one step closer more than 40 years after the Environment Quality Act (EQA) was adopted. The purpose of Bill 102, introduced on June 7, 2016, by the Minister of Sustainable Development, the Environment and the Fight Against Climate Change, Mr. David Heurtel, is to simplify the existing environmental authorization process, but does it really?
Based on a thorough analysis of the proposed provisions, needless to say that Bill 102 creates many uncertainties for a good number of projects subject to the EQA.
The new authorization scheme
Bill 102 proposes a single authorization scheme instead of the various schemes that currently exist under the EQA. Therefore, certificates of authorization, depollution attestations, authorizations, whether they involve water withdrawals, water management and treatment facilities or equipment designed to reduce or prevent releases of contaminants into the atmosphere, and permits applicable to hazardous materials management will be replaced with a single authorization scheme.
Bill 102 proposes that the scheme be adjusted according to the environmental risk represented by the project. Subjected projects will therefore be divided into the following four classes:
Click here to view the table.
High-risk activities: These are projects that are considered to have higher environmental risks. These projects, which will be specifically prescribed by regulation, remain subject to the environmental impact assessment and review procedure (EIARP). A bulletin dealing specifically with changes applicable to the EIARP will be published shortly.
Moderate-risk activities: These are projects with a varying degree of environmental risk that may require the implementation of mitigation measures. These projects will be subject to an authorization issued by the Minister.
When assessing a project's impacts, Bill 102 provides that the following will be considered:
- the nature of the project and how it is to be carried out;
- the characteristics of the milieu affected;
- the nature, quantity, concentration and location of any and all contaminants that will be released into the environment;
- the greenhouse gas emissions attributable to the project and any climate change impact mitigation and adaptation measures (a bulletin on Bill 102 proposed measures regarding greenhouse gas emissions will be published shortly);
- the management of residual materials that will be generated by the activity.
Conditions that may be prescribed in an environmental authorization include an environmental monitoring program, the period when an activity can be carried out, site restoration measures and post-closure management, the forming of a watchdog committee, measures to reduce greenhouse gas emissions, the submission of a characterization study and the removal or containment of contaminants present.
Low-risk activities: These are projects with a minor environmental impact. A regulation of the government will state the list of low-risk activities. Such projects will be subject to the filing of a declaration of compliance at least 30 days before beginning the activity. Note that the conditions, restrictions and prohibitions applicable to activities that will be determined by regulation may vary according to the class of activities or persons, the territory concerned or the characteristics of a milieu.
Negligible-risk activities: These are projects that have a negligible impact on the environment. Projects specifically exempt will not be subject to any prior technicality other than a possible declaration of activity. A regulation of the government will state the list of negligible-risk activities. Note that Bill 102 provides that this exemption may apply to any part of the territory of Québec, class of persons, municipalities or activities and, if necessary, set out conditions, restrictions and prohibitions which may vary according to the type of activity, the territory concerned and the characteristics of a milieu.
How the new authorization scheme works
Note that Bill 102 grants the Minister broad discretionary power to impose any condition the Minister deems advisable, and even to refuse to issue the authorization if the Minister is of the opinion that the measures proposed by the applicant when carrying out the project will be insufficient to ensure adequate protection of the environment, human health and other living species.
The Minister also enjoys discretion when assessing any application to amend a previously issued authorization. The Minister may modify any existing condition or impose further conditions if the Minister is of the opinion that this is necessary to protect the environment.
Bill 102 also provides that the validity period and the possibility of renewing an authorization for certain types of projects will be specifically prescribed by government regulation, in particular for the operation of an industrial establishment, which authorization will have to be renewed every 5 years.
Finally, authorizations will now be transferable by sending a notice of transfer to the Minister, together with the declaration required under section 115.8 of the EQA, and any security or liability insurance required by government regulation. The Minister may only oppose the transfer for reasons specifically provided in the EQA.
Impact on your activities
Several provisions of Bill 102 grant the Minister significant discretionary power under this new environmental authorization scheme. We refer in particular to the power to prescribe standards, conditions, restrictions or prohibitions in an authorization other than those provided by government regulation if the Minister considers that those applicable are insufficient to respect the support capacity of the receiving environment or to protect human health or other living species. The Minister's discretion therefore creates uncertainty with respect to the rules that may be applicable to the project.
For example, if an authorization to operate an industrial establishment is being renewed for the first time, renewable after 5 years, a public consultation will be conducted and the Minister may amend or refuse to renew the authorization following the consultation period. A similar procedure currently exists under the EQA concerning depollution attestations of industrial establishments, however the new scheme might apply to other activities not yet covered by the industrial establishment scheme.
Furthermore, if the Minister has reason to believe that contaminants referred to the EQA are present in land to be used for a project subject to an authorization, the Minister may require that the operator, for the purpose of analyzing the application, submit a characterization study, and eventually take the measures required to protect the environment if contaminants likely to adversely affect human health or the environment are identified.
These new discretionary powers, intended to enable the Minister to better protect the environment, make it difficult for project developers and industries to make long-term financial projections with respect to their project's viability.