Regulations Amending the Regulations Prescribing Circumstances for Granting Waivers Pursuant to Section 147 of the Act: SOR/2018-246
Canada Gazette, Part II, Volume 152, Number 25
SOR/2018-246 November 23, 2018
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
P.C. 2018-1428 November 22, 2018
Whereas, pursuant to subsection 332(1) footnote a of the Canadian Environmental Protection Act, 1999 footnote b, the Minister of the Environment published in the Canada Gazette, Part I, on December 9, 2017, a copy of the proposed Regulations Amending the Regulations Prescribing Circumstances for Granting Waivers Pursuant to Section 147 of the Act, 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;
Whereas, pursuant to subsection 145(2) of that Act, before recommending the proposed regulation, the Minister of the Environment offered to consult with the governments of the provinces and the members of the National Advisory Committee who are representatives of Aboriginal governments;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of the Environment, pursuant to section 145 of the Canadian Environmental Protection Act, 1999 footnote b, makes the annexed Regulations Amending the Regulations Prescribing Circumstances for Granting Waivers Pursuant to Section 147 of the Act.
Regulations Amending the Regulations Prescribing Circumstances for Granting Waivers Pursuant to Section 147 of the Act
1 (1) The portion of section 1 of the Regulations Prescribing Circumstances for Granting Waivers Pursuant to Section 147 of the Act footnote 1 before paragraph (a) is replaced by the following:
1 The circumstances referred to in section 147 of the Canadian Environmental Protection Act, 1999 are the following:
(2) Paragraph 1(a) of the Regulations is amended by adding “or” at the end of subparagraph (ii) and by replacing subparagraphs (iii) to (xv) with the following:
- (iii) a declaration of emergency in a province, by a responsible provincial authority duly authorized by the applicable provincial Act regarding emergency situations or civil protection; or
Coming into Force
2 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The Standing Joint Committee for the Scrutiny of Regulations (SJCSR) has identified minor issues with references to provincial and territorial legislation in the Regulations Prescribing Circumstances for Granting Waivers Pursuant to Section 147 of the Act (the Fuel Waivers Regulations or the Regulations), including an obsolete reference and the unnecessary use of terms like “as may be amended” in relation to these references.
The Fuel Waivers Regulations, which came into force on June 17, 2010, prescribe the circumstances under which fuels regulations of section 140 or 145 of the Canadian Environmental Protection Act, 1999 (CEPA) can be temporarily waived. The Fuel Waivers Regulations allow the Minister of the Environment (the Minister) to grant temporary waivers to the requirements outlined above if there is an actual or anticipated fuel shortage, and either
- the Governor in Council makes a specific proclamation under the Emergencies Act;
- the Governor in Council issues a specific order under the Energy Supplies Emergency Act;
- a designated responsible official, as described within the applicable provincial act, indicates that there is an emergency by way of an order or a declaration; or
- the Minister of National Defence advises the Minister that the actual or anticipated shortage of fuel affects or could affect the Government of Canada’s ability to execute critical tasks, such as national defence operations.
Although states of emergency have been declared by provinces in the past — such as the 2016 evacuation of the residents from Fort McMurray, Alberta, due to a rampant forest fire — the Minister has not received any requests for the application of the Regulations to date and no waivers have been issued.
There are currently five regulations on fuels made under those sections of CEPA that allow for the granting of temporary waivers.
The Fuels Information Regulations, No. 1 require annual reporting on sulphur levels in fuels and one-time reporting on non-lead fuel additive content. This provides the Department of the Environment (the Department) with information regarding liquid fuel composition, particularly concerning sulphur dioxide emissions from combustion.
The Gasoline Regulations limit the concentration of lead in gasoline that is produced, imported, sold or offered for sale in Canada and limit the concentration of phosphorus in unleaded gasoline.
The Renewable Fuels Regulations require fuel producers and importers to have an average renewable content of at least 5% based on the volume of gasoline that they produce or import and at least 2% of the volume of diesel fuel and heating distillate oil that they produce and import.
The Sulphur in Diesel Fuel Regulations set maximum limits for sulphur in diesel fuel for use in on-road, off-road, rail (locomotive), vessel, and stationary engines.
The Sulphur in Gasoline Regulations limit the concentration of sulphur in gasoline that is produced, imported, and sold. These Regulations have reduced the sulphur content of gasoline by more than 90% from 1999 levels.
The objective of the Regulations Amending the Regulations Prescribing Circumstances for Granting Waivers Pursuant to Section 147 of the Act (the Amendments) is to address issues, identified by the SJCSR, with references to provincial and territorial legislation in the Fuel Waivers Regulations.
The Amendments replace subparagraphs 1(a)(iii) to 1(a)(xv), which describe, for each province or territory, the conditions under which the responsible authority of the province or territory declares a state of emergency under specific provincial or territorial legislation. footnote 2 These subparagraphs have been replaced with one subparagraph:
- 1(a)(iii) a declaration of emergency in a province, by a responsible provincial authority duly authorized by the applicable provincial Act regarding emergency situations or civil protection; or
This change removes all specific references to provincial or territorial legislation, which could change from time to time, potentially rendering the reference obsolete. All occurrences of the words “as amended from time to time” have thereby been removed, along with the obsolete reference.
The Department has decided not to proceed with the change to the English version of the title of the Regulations (i.e. the change from “pursuant to” to “under”) as proposed in the Canada Gazette, Part I.
The requirements of the Regulations have not been changed.
The “One-for-One” Rule does not apply to the Amendments, as there will be no impact on business.
Small business lens
The small business lens does not apply to the Amendments, as there will be no impact on business.
Given that the Amendments make housekeeping changes and are not expected to impact stakeholders, no pre- consultations were held for the proposed Amendments to the Regulations. No comments were submitted by the CEPA National Advisory Committee footnote 3 during the 60-day public comment period following publication in the Canada Gazette, Part I. However one comment was received:
Comment: A provincial authority commented that the language of subparagraph 1(a)(iii) may inadvertently allow for a local authority to request a waiver when a local authority has declared a state of local emergency in a province, as allowed for pursuant to the province’s emergency management legislation.
Response: The Amendments continue to allow the Minister of the Environment to grant temporary waivers under the authority of CEPA if there is an actual or anticipated fuel supply shortage during a declared provincial emergency. The Amendments make clear that the Regulations apply to provincial emergencies, not to local emergencies (i.e. municipalities).
The Amendments streamline the references to provincial and territorial legislation in the Regulations in response to comments received from the SJCSR and internal analysis.
The Amendments replace 13 subsections, which describe the same conditions for the application of waivers to fuels regulations for each individual province and territory, with one subsection that covers all the provinces and territories. The Department will continue to maintain a list of the relevant sections of provincial and territorial legislation, to enable timely application of the Regulations in the event of an emergency declaration in a province or territory.
Given that the Amendments make housekeeping changes to the Regulations, no impacts or costs are expected.
Oil, Gas and Alternative Energy Division
Department of the Environment
351 Saint-Joseph Boulevard
Regulatory Analysis and Valuation Division
Department of the Environment
200 Sacré-Cœur Boulevard