An overhaul of Quebec’s environmental authorization scheme is in the works

The Quebec government has taken the first steps to modernize the Environment Quality Act by tabling Bill 102¹ in the National Assembly in early June. This first step, which consists in a revision of the environmental authorization process, will be followed by amendments to the regulations under the Act and, we have been told, changes to departmental practices and procedures.
 

An authorization scheme designed around environmental risk

The Bill proposes four different approaches for four levels of environmental risk.

High-risk activities

The environmental impact assessment and review procedure would be maintained for large or complex projects that raise social concerns and that could have a major impact on the environment.
The Regulation respecting environmental impact assessment and review would continue to list projects that would be subject to the procedure. However the list would be reviewed and the Minister of Sustainable Development, the Environment and the Fight Against Climate Change would propose another review every five years.² The government could also make projects that are not already listed in the regulation subject to the environmental impact assessment and review procedure in certain situations. This would, however, be exceptional and would only be done upon the Minister’s recommendation.³

A public register of projects subject to the environmental impact assessment and review procedure would be established and updated at every stage in the procedure.⁴ Public consultations would start as soon as a project notice is released and in its impact assessment statement the project proponent would have to respond to the observations made and the issues raised in the consultations.⁵ If the impact assessment statement does not deal in a satisfactory manner with the required subject matter, the Minister could send the project proponent a single series of questions. If the impact statement is still not admissible despite the project proponent’s answers, the Minister would send a notice terminating the environmental assessment of the project.⁶

The public information period would commence once the impact assessment statement is considered admissible. Unless the Minister considers an application to be frivolous, the Minister would instruct the Bureau d’audiences publiques sur l’environnement (BAPE) to hold a public hearing, a targeted consultation or mediation.⁷ In certain cases, a project could go directly to the public hearing stage without the project proponent having to initiate the public information period.⁸

The BAPE would report back to the Minister, who would make a recommendation to the government, following which the government would either issue an authorization for the project, with or without amendments and subject to the conditions, restrictions or prohibitions it determines, or refuse to issue an authorization.⁹ The government could, if it considers it necessary to ensure adequate protection of the environment or health, prescribe any standard, condition, restriction or prohibition in the authorization that differs from those prescribed by regulation.¹⁰

Moderate-risk activities

A single ministerial authorization would replace all of the following:

• the certificate of authorization;
• the depollution attestation applicable to certain industrial establishments;
• the authorization schemes applicable to certain water withdrawals, water management and treatment facilities;
• the authorization applicable to the installation and operation of equipment designed to reduce or prevent releases of contaminants into the atmosphere;
• the permission for construction on land formerly used as a residual materials elimination site; and
• the permit for hazardous materials management.

Thus, a single application for authorization would be required for a moderate-risk project¹¹ and a change to the authorized activities would require an application for an amended authorization rather than an application for a new authorization.¹²

However, specific supplemental provisions would apply to industrial establishments covered by regulation of the government, to municipal water treatment facilities and water management facilities and to the management of water resources, residual materials and hazardous materials.

In the cases provided for by regulation, the Minister could take into account the greenhouse gas emissions attributable to the project and assess any climate change impact mitigation and adaptation measures a project might entail (climate test).¹³

On issuing an authorization, the Minister could prescribe any condition, restriction or prohibition that he or she deems advisable¹⁴ and, for certain reasons, could, in an authorization, prescribe any standard, condition, restriction or prohibition that differs from those prescribed by regulation.¹⁵

The valid term of an authorization could be prescribed by regulation, depending on the activity or class of activities. For any activity not covered by regulation, the Minister could prescribe the valid term when issuing the authorization.¹⁶

An authorization would be transferable without ministerial authorization. The transferor would first have to send the Minister a notice of transfer containing the prescribed information and documents. The transfer would be deemed to have been completed thirty days following the Minister’s receipt of the documents, unless the Minister notifies the transferor and the transferee of his or her intention to oppose the transfer for any of the reasons provided in the Act.¹⁷

The Bill proposes to allow the Minister to issue an authorization for research and experimental purposes by allowing a derogation from the Environment Quality Act or the regulations thereunder. Since such a project’s purpose would be to assess the environmental performance of a new technology or a new practice, the authorization application would have to be accompanied with an experimental protocol. The term of the authorization would be fixed by the Minister and activity reports would have to be submitted.¹⁸ The authorization would not be transferable.¹⁹

The requirement to provide the Minister with a certificate from the municipality to the effect that the project does not contravene any municipal by-law would be repealed.²⁰

The authorizations (and documents forming an integral part of authorizations) would be filed in a register that would be made available to the public.²¹


Low-risk activities

In future, a declaration of compliance would be required for low-risk activities determined by regulation that would otherwise be subject to an authorization under s 22 of the Environment Quality Act. The declaration of compliance would have to be filed with the Minister at least thirty days before the start of the activity and would have to attest that the activity complies with the conditions, restrictions and prohibitions fixed by regulation.²² The Minister would have to be notified if the declarant’s activities were continued by another person or municipality.²³

A person or municipality who has made a declaration of compliance and who carries on an activity in contravention of the conditions, restrictions or prohibitions fixed by regulation would be deemed to be carrying on its activity without the authorization required under subdivision 1 (ss 22 and following) and would thus be liable to the same penalties, remedies, fines and other measures as if it did not have an authorization.²⁴

Negligible-risk activities

The Minister could, by regulation and on such conditions, restrictions and prohibitions he or she determines, exempt certain activities from the application of subdivision 1 (ss 22 and following). The Minister could also, by regulation, submit exempt activities to a declaration of activity.²⁵

In the case of an activity which is urgent to repair damage caused by a disaster within the meaning of the Civil Protection Act or to prevent damage that could be caused by an apprehended disaster, the Minister could exempt all or part of an activity from some or all of the provisions relating to the ministerial authorization and the declaration of compliance.²⁶
 

New provisions relating to the release of contaminants, hazardous materials and residual materials

Sections 20 and 21 of the Environment Quality Act, which respectively prohibit the release of a contaminant into the environment and require the Minister to be notified in the event of a release, would be slightly amended. In addition to updates to their terminology, these sections would be amended to provide that the Minister must notify his or her counterpart in Health and Social Services if the presence of a contaminant in the environment is likely to adversely affect the life, health, safety, welfare or comfort of human beings. The Minister could also, if of the opinion that it is advisable, notify the Minister of Public Safety and the Minister of Agriculture, Fisheries and Food. The obligation to stop a release would be made explicit in s 21, whereas currently it is implied.

The accidental release of hazardous materials that is currently covered by the Regulation respecting hazardous materials would be integrated into the Act as ss 70.5.1 to 70.5.5. The person responsible for such an accidental release would still have to recover the materials as soon as possible and remove any contaminated matter that is not cleaned or treated in situ. However, a government regulation might determine the cases where and the conditions on which the materials could remain in the land. In cases determined by government regulation, there would be a new obligation to conduct a characterization study and to register notices of contamination and decontamination. There would also be an obligation to notify the owner of neighbouring land in certain situations. Where residual materials are present on land that has been used as an elimination site, a land use restriction notice would have to be registered in the land register in order to obtain an authorization to build on the land.²⁷ In addition, if the residual materials are subsequently removed, a residual materials removal notice would have to be registered and there would also be an obligation to notify the owner of the neighbouring land concerned in certain circumstances.²⁸

Amendments are also proposed to the provisions relating to land protection and rehabilitation. Thus, the Minister could in certain cases require submission of a characterization study as part of an application for authorization under s 22 of the Act.²⁹ Land rehabilitation measures that would be eligible for a declaration of compliance could be determined by regulation,³⁰ in which case a rehabilitation plan would not have to be submitted to the Minister.³¹
 

Special rules for strategic environmental assessments

A new chapter is proposed to cover strategic environmental assessments. Strategic environmental assessments would cover the Administration’s programs (strategies, plans or other forms of guidelines) that could have environmental effects and any proposal to amend such programs.³² The objective is to promote fuller consideration of environmental issues and of the principles of sustainable development in the development of programs. A further objective is to define conditions of environmental and social acceptability for projects arising from such programs. A strategic environmental assessment register would be created³³ and public consultation would be considered.³⁴ The Minister would have to take the findings of such strategic assessments into consideration when analyzing applications for authorization that are submitted to him or her.³⁵
 

Conclusion

The changes proposed to the Environment Quality Act are major and their full scope will become clear once the required regulations have been adopted or amended and the department’s administrative practices and documents have been adjusted. It should be noted that additional amendments not discussed here have been proposed, particularly with respect to the Minister’s power to make orders and his or her powers to amend, suspend, revoke or refuse an authorization.

Works, construction and other activities in wetlands and bodies of water will continue to be subject to authorization and to the Act respecting compensation measures for the carrying out of projects affecting wetlands or bodies of water, which will continue in force until April 2017. A separate bill on this topic is expected to be tabled before then.
 

Footnotes

1. An Act to amend the Environment Quality Act to modernize the environmental authorization scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund
2. S 24 of the Bill amending s 31.9 of the Environment Quality Act (EQA).
3. S 19 of the Bill introducing s 31.1.1 EQA.
4. S 177 of the Bill introducing 118.5.0.1 EQA.
5. S 20 of the Bill introducing s 31.3.1 EQA.
6. S 20 of the Bill introducing ss 31.3.3 and 31.3.4 EQA.
7. S 20 of the Bill introducing s 31.3.5 EQA.
8. Idem.
9. S 19 of the Bill introducing s 31.3.7 EQA and s 20 of the Bill replacing s 31.5 EQA.
10. S 20 of the Bill replacing s 31.5 EQA.
11. S 16 of the Bill replacing Division IV of Title I EQA. The ministerial authorization would be included in Division II – Procedures to regulate certain activities, namely ss 22 and following EQA.
12. New s 30 EQA.
13. New s 24 EQA.
14. New s 25 EQA.
15. New s 26 EQA.
16. New s 28 EQA.
17. New s 31.0.2 EQA.
18. New s 29 EQA.
19. Last paragraph of new s 31.0.2 EQA.
20. S 244 of the Bill provides for the repeal of s 8 of the Regulation respecting the application of the Environment Quality Act.
21. S 177 of the Bill introducing s 118.5 EQA.
22. New s 31.0.6 EQA.
23. New s 31.0.9 EQA.
24. New s 31.0.10 EQA.
25. New s 31.0.12 EQA.
26. New s 31.0.14 EQA.
27. New s 100 of the Bill introducing s 65.2 EQA.
28. S 100 of the Bill introducing ss 65.4 and 65.3 EQA.
29. S 31 of the Bill introducing s 31.50.1 EQA.
30. S 37 of the Bill introducing s 31.68.1 EQA.
31. S 37 of the Bill introducing s 31.68.2 EQA.
32. S 116 of the Bill introducing s 95.5 EQA.
33. S 116 of the Bill introducing s 95.13 EQA.
34. S 116 of the Bill introducing s 95.10 EQA.
35. New s 24 EQA.