CONTEXT

On February 14, 2018, the Government of Quebec published 24 draft regulations that seek to implement amendments to the Environment Quality Act (EQA), as part of the modernization of its environmental approval scheme. The new draft regulations follow the publication of the draft Regulation respecting the environmental impact assessment and review of certain projects on December 13, 2017.

These regulations, that are needed to give effect to the new EQA provisions, were initially scheduled to come into force on March 23, 2018. Instead, the government has postponed the implementation date of these regulations to December 1, 2018. Despite the postponement, the new EQA provisions will still come into force on the original date, subject to certain terms.

This bulletin summarizes some of the proposed amendments to the regulations and the transitional measures that will apply until the regulations are passed.

OVERVIEW OF AMENDMENTS

Implementing Regulation

The draft Regulation respecting ministerial authorizations and declarations of compliance in environmental matters (Implementing Regulation) is key to the government’s regulatory reform.

In addition to implementing the approval regime and climate test, the Implementing Regulation also proposes: (i) the implementation of a mechanism for the admissibility of authorization applications; (ii) the procedure applicable to the transfer of authorizations issued under the EQA; and (iii) the measures applicable upon the cessation of certain activities.

Approval regime: The Implementing Regulation specifies the requirements applicable to the three categories of projects provided for in the EQA (except for high-risk activities, which are subject to the environmental impact assessment and review procedure):

  1. Obtaining a ministerial authorization (moderate-risk activities): The Implementing Regulation provides an exhaustive list of each activity that requires a ministerial authorization and, for each activity, the information and documents that must be provided in support of an application. Once adopted, all of the requirements relating to an application for an authorization for all sectors will be set out in the Implementing Regulation rather than being dispersed among various sector-specific regulations.
  2. Filing a declaration of compliance (low-risk activities): The Implementing Regulation lists the activities subject to the filing of a declaration of compliance, the content of the declaration and the requirements for each of these activities. The requirements may include compliance with certain minimum threshold requirements, the deposit of a financial guarantee and a requirement that the declaration of compliance be certified by an expert.
  3. Exemption from the requirement to obtain an authorization (negligible-risk activities): The Implementing Regulation sets out the activities that are exempt from the authorization scheme under the EQA and for which there is no other requirement. Some activities, however, require the filing of a declaration of activity.

Climate test: The Implementing Regulation sets out a restrictive list of activities, equipment and processes the implementation or use of which requires the risks related to climate change to be taken into account in applications for authorization (climate test). These activities include hydrocarbon exploration, thermal treatment of contaminated soils and treatment of natural gas. The Implementing Regulation also provides that additional information must be provided for the use of a combustion system if a project is not already subject to the climate test.

The climate test will apply regardless of the greenhouse gas (GHG) emission levels of the activities in question, which represents a lower applicability threshold than that provided for by Quebec’s cap-and-trade system for GHG emission allowances. That system applies to emissions of 25,000 metric tonnes carbon dioxide equivalent or more.

Other Amended Regulations

The draft Regulation respecting the environmental impact assessment and review of certain projects will update the requirements of the environmental impact assessment and review procedure that apply to high-risk activities and provides for: (i) a review of the list of activities subject to the procedure; (ii) the introduction of a public register of environmental assessments, specifying its content and the terms of publication; (iii) public consultation regarding the issues to be considered as part of the environmental impact study (before the impact study is carried out); (iv) quantification of the GHG emissions and an analysis of the expected climate change risks to, and impact on, the project; and (v) shorter time limits for certain stages of the procedure.

In addition, the following amendments to other regulations are noted:

  • Draft Regulation respecting work related to a water management or treatment facility: provides for a regulatory framework for the work carried out as part of the establishment, alteration or extension of a waterworks or sewer system and replaces the Regulation respecting the application of section 32 of the Environment Quality Act.
  • Draft Regulation to amend the Regulation respecting industrial depollution attestations: provides that new industrial sectors will be governed by the industrial authorization scheme (this will apply to the following sectors: organic chemistry, petrochemistry, petroleum refineries, tire manufacturing, explosives manufacturing, processing or production of a chemical element, metal compounds or chemicals from rare earth concentrate, radioactive elements or a lithium concentrate).
  • Draft Regulation replacing the Regulation respecting sand pits and quarries: provides for noise management measures, stricter requirements related to blasting activities, a review of location standards, a review of the amounts of the financial guarantees that must be posted and an update of site restoration requirements.
  • Draft Regulation to amend the Regulation respecting hazardous materials: provides for the adoption of measures to manage the accidental release of hazardous materials, including the characterization of land where hazardous materials cannot be recovered and the registration of a notice of contamination, as well as a framework for on-site treatment of contaminated materials that cannot be removed and for the maintenance of on-site hazardous materials in cases where treatment is impossible.
  • The following draft regulations have been proposed to regulate new sectors of activity: the Fertilizing Residuals Regulation and the Regulation respecting the extension of a storm water management system eligible for a declaration of compliance.

The government has also proposed amendments to approximately 15 other regulations so as to allow for the implementation of the amendments to the EQA.

SHORT-TERM IMPLICATIONS

Transitional Measures

The government has proposed transitional measures that will apply until the regulations made under the EQA are passed. Subject to certain conditions, these measures provide that the EQA will apply in its amended form and will be supplemented by the regulations currently in force.

Starting March 23, 2018, this means that:

  • Only one authorization will be required for moderate-risk activities; the current application forms, guides and guidelines will continue to apply.
  • A declaration of compliance may be filed only for the three sectors of activity currently covered, namely projects relating to: (i) the rehabilitation of contaminated land by excavation of no more than 10,000 m3 of soil; (ii) certain waterworks and sewer system extensions; and (iii) the establishment and operation of an asphalt plant. The EQA contains specific conditions regarding these types of projects.
  • Environmental authorizations can be transferred by sending a notice of transfer.
  • A register of the projects subject to the environmental assessment procedure will be created (for projects authorized after March 23, 2018, as well as for projects that are in the process of analysis on that date).
  • Documents considered to be public (including new authorizations and applications for authorization and related documents) will be made available as, and when, they are filed with the ministry. Publication depends on whether information is deemed to be a confidential trade or industrial secret.

Public Consultation and Coming into Force

Of the 24 draft regulations, 22 have been submitted to public consultation for a period of 60 days, i.e., until April 16, 2018. The other two, namely the draft Regulation respecting private waterworks and sewer services and the draft regulation implementing the transitional measures, have been submitted to public consultation for a period of 15 days and are scheduled to come into force on March 23, 2018. The draft Regulation respecting the environmental impact assessment and review of certain projects will also come into force on March 23, 2018.