Written by Sabrina Spencer, Dufferin Harper, Jonathan W. Kahn, Charles Kazaz, and Sydney McLauchlan, Blake Cassels & Graydon LLP
In light of ongoing uncertainty of the duration of COVID-19 and its impact on industrial operations and despite the federal government only committing to the exercise of “enforcement discretion,” several provinces have recently acted to temporarily relax numerous environmental notice, reporting and compliance requirements. This bulletin provides an update on the changes introduced over the past several weeks by the governments of Alberta, British Columbia, Ontario and Quebec. For initial governmental actions pertaining to environmental regulatory compliance requirements during the current COVID-19 pandemic, and measures businesses can take to protect themselves, please refer to our March 2020 Blakes Bulletin: Environmental Regulatory Compliance During the COVID-19 Pandemic.
The Ministry of Environment and Climate Change Strategy (MOE) has issued a notice stating that authorization requirements under the Environmental Management Act (EMA) and the Integrated Pest Management Act (IPMA) remain in effect and all reasonable measures should be taken to comply. If an authorization holder is unable to meet its requirements due to the impact of orders, directives or guidance issued by B.C. in response to COVID-19, the MOE requires notice of the non-compliance, including a rationale as to how the compliance issue is related to COVID-19 and information on mitigative measures being taken. Notice regarding non-compliance pursuant to the EMA must be provided to [email protected], while notice regarding non-compliance pursuant to the IPMA must be provided to [email protected]. The MOE will take into consideration directives and guidance from the public health officer when addressing non-compliances.
On March 27, 2020, the Chief Gold Commissioner issued a blanket order extending timelines in relation to all claims and licenses under the Mineral Tenure Act, as well as in relation to all coal licenses and leases under the Coal Act. The time to make cash in lieu or register work on claims that have expiry dates before December 31, 2021, is extended to December 31, 2021. Claims with expiry dates past this date are not subject to this order. For mining and placer leases, as well as coal leases and licenses, the time to register the annual rental payment, which is normally on the anniversary date, is extended to December 31, 2021.
Also on March 27, 2020, a notice was issued jointly by the Environmental Appeal Board, the Forest Appeals Tribunal and the Oil and Gas Appeal Tribunal suspending mandatory timeframes, effective March 18, 2020, for the filing of appeals at all three tribunals. The suspension of timeframes will remain in effect until further notice at the end of the COVID-19 public health crisis.
On April 1, 2020, OIC 158/2020 was approved to amend regulations made pursuant to the Greenhouse Gas Industrial Reporting and Control Act. OIC 158/2020 gives the director discretion to accept incomplete emission reports or compliance reports (i.e. either missing required information or a verification statement) for the reporting period ending December 31, 2019 (2019 GHG Reporting), and to provide up to six months for the missing information to be provided. The OIC also gives the director discretion to extend the submission deadline for 2019 GHG Reporting by up to six months. Finally, the OIC gives the director discretion to conduct any site visit required in relation to 2019 GHG Reporting virtually and in accordance with the director’s directions. Details on how this discretion will be exercised have not been provided.
On April 8, 2020, the Oil and Gas Commission (OGC) issued Industry Bulletin 2020-09, extending the payment deadline for the 2019/20 pipeline annual levy from 30 to 90 days. The OGC has also indicated that it will continue to undertake proactive inspections, with modified procedures to maintain social distancing which may include requesting site photographs from company representatives in lieu of site visits where possible. The OGC will also continue to take enforcement action where necessary. The OGC has also provided direction in relation to its modified operations, including new procedures related to core samples and drill cuttings, in its COVID-19 Response for Industry bulletin, which will be updated as operations continue to evolve in response to COVID-19.
On March 30, 2020, the Minister of Environment and Parks, issued Order 15/2020 and Order 16/2020, which relaxed certain reporting requirements under the Technology Innovation and Emissions Reduction (TIER) Regulation and the Renewable Fuels Standard (RFS) Regulation, respectively. On March 31, 2020, the Minister issued Order 17/2020, which relaxed requirements under the Environmental Protection and Enhancement Act (EPEA), the Water Act (WA) and the Public Lands Act (PLA). On the same day, the Director of Air Policy issued a temporary amendment to requirements under the Air Monitoring Directive (AMD). On April 6, 2020, the Minister of Energy issued Order 219/2020 which relaxed requirements under the Oil and Gas Conservation Act (OGCA), Coal Conservation Act (CCA) and Oil Sands Conservation Act (OSCA).
Order 15/2020 modifies the TIER Regulation by extending the deadline to submit 2019 compliance reports and emissions reduction plan reports, and Order 16/2020 modifies the RFS Regulation by extending the deadline for fuel suppliers, approved contributors, and renewable fuel providers to submit 2019 compliance reports, both from March 31, 2020, to June 30, 2020.
Order 17/2020 modifies the EPEA suspending all requirements to report information pursuant to provisions in approvals or registrations issued under EPEA. Similarly, reporting entities are no longer required to report information relating to provisions in licenses or approvals issued under the WA. Finally, all disposition requirements to submit returns or reports are suspended under the PLA. Drinking water facilities are not captured by these amendments however and must continue to follow all terms and conditions of the authorizations, including the required reporting.
Order 219/2020 modifies the CCA and the OSCA by suspending various reporting requirements, including annual reporting, exploration reporting and all plans within approval conditions, except conditions related to geotechnical reporting requirements. It also modifies the OGCA by suspending various reporting requirements. All initial suspension requirements for inactive wells that are not part of the Well Compliance Program and considered low and medium-risk type 6 are suspended, in addition to ongoing inspection requirements. For inactive wells in the Well Compliance program, the compliance deadline is suspended for the final program year.
The relaxation to requirements set out in Orders 15, 16, 17 and 219/2020 are in effect until August 14, 2020, or 60 days after the Order in Council 080/2020 is terminated (if done so before June 15, 2020), or when terminated by the Lieutenant Governor in Council, or by the Minister.
In addition, from March 31, 2020, to December 31, 2020, several AMD reporting requirements are relaxed including: reduced frequency of ambient continuous air monitoring station calibrations, station manifold and inlet cleaning; removal to report “calendar day” in AMD reporting forms; three-month extension for completion and submission of 2019 Annual Emissions Inventory Report; removal to immediately report exceedances of Ambient Air Quality Guidelines until August 31, 2020; and two-month extension for submission of airshed monthly air monitoring summary reports and ambient data.
The Government of Ontario has promised guidance relating to requirements for monitoring and reporting during the COVID-19 crisis, but thus far no guidance has been provided and all monitoring and reporting obligations under regulations and approvals remain in force. Operationally, anecdotal experience suggests that some Ministry of Environment, Conservation and Parks offices are showing flexibility from an enforcement perspective, but this appears to be largely an ad hoc approach in situations where compliance is not achievable.
The Ministry of Environment, Conservation and Parks has announced that it is temporarily exempting all Ontario Ministries from the requirement to post proposals for instruments on the Environmental Registry, ostensibly to allow the Government to respond quickly to time sensitive needs of the Government and various regulated entities.
As set out in previous Blakes bulletins, the Ontario courts have suspended various civil proceedings and the Government of Ontario has suspended limitation periods and various procedural time limits. The Ontario Environmental Review Tribunal has confirmed that all in-person Environmental Review Tribunal hearings will be postponed but it is where possible carrying on with interlocutory and procedural matters by teleconference.
The Quebec Ministry of the Environment and Fight against Climate Change (MELCC) has issued guidance on its website regarding compliance inspection activities during the COVID-19 state of emergency. The MELCC has indicated that it will need to adjust its delivery of compliance services to be consistent with the government position on COVID-19 that is focused on social distancing and take into account the challenges faced by businesses.
Under the MELCC guidance, businesses must do everything they can to avoid causing damage to the environment and they must continue to comply with legal obligations for situations that may have a direct impact on the health and safety of the population as well as on the quality of the environment.
Compliance inspections by the MELCC, other than those related to responding to environmental emergencies, responding to complaints and monitoring of drinking water, will be limited and performed in situations where there is a significant risk to the quality of the environment or the health and safety of the population.
The MELCC has also indicated that it will be tolerant with businesses whose ability to comply with environmental obligations are affected by the restrictions put in place as a result of the COVID-19 emergency measures, particularly in relation to compliance with administrative requirements, such as requirement to transmit reports. In the majority of non-compliance situations, enforcement measures will not be used. However, the MELCC reserves the right to do so if the situation requires action. Specifically, enforcement measures, such as notices of non-compliance and administrative monetary penalties, will be limited and adapted to the current COVID-19 situation. If situations of non-compliance cause significant risks to the environment or to the health and safety of the population, the government will assess the action to be taken, taking into account the emergency situation and the context specific to each case.
The MELCC has also announced that it will temporarily exempt companies who seek to convert their operations in order to participate in efforts to combat COVID-19 from obtaining environmental authorization that would normally be required to modify an activity—for example, an increase in production—or to add an activity—for example, the design of new products. The MELCC must be notified of the activity to undertaken and receive confirmation of the exemption from the Minister, which will be delivered with 48 hours.
The impact of COVID-19 is rapidly evolving and there are no clear answers or timeframe for the crisis to end. To help navigate the challenges, Blakes has consolidated resources on a range of topics relating to COIVD-19 and its business and legal implications.
About the Authors
Sabrina Spencer is an Associate at Blakes’ Vancouver offices. Sabrina’s practice focuses on environmental, indigenous and municipal law, and includes project development matters, real property matters, regulatory compliance, indigenous consultation and accommodation, and commercial transactions and agreements.
Dufferin Harper (Duff) is a Partner at Blakes’ Calgary offices. He practices in the areas of environmental law, commercial litigation and regulatory law. He routinely acts for clients on environmental due diligence and liability issues, especially as they pertain to brownfield redevelopment and transportation of dangerous goods.
Jonathan W. Kahn is a Partner at Blakes’ Toronto offices. He is widely regarded as one of Canada’s leading environmental lawyers. For more than 25 years, he has provided representation and advice on a broad range of environmental and natural resources law issues.
Charles Kazaz practices all aspects of environmental law at Blakes. He advises clients in the commercial, industrial, mining and waste-management sectors. Charles is based in both Montréal and Toronto and has extensive expertise in environmental aspects of corporate, commercial and property transactions, project development, regulatory compliance and liability issues.
Sydney McLauchlan is an articling student at Blakes. She obtained her J.D. from Queen’s University Belfast.