REGULATORY IMPACT ANALYSIS STATEMENT

Disposal at Sea Regulations

(This statement is not part of the Regulations.)

This statement describes the Disposal at Sea Regulations under the Canadian Environmental Protection Act, 1999 (CEPA, 1999) which replace the Ocean Dumping Regulations, 1988.

Each year in Canada, two to three million tonnes of material are disposed of at sea. Most of this is dredged material that must be moved to keep shipping channels and harbours clear for navigation and commerce. Only those substances listed in the CEPA, 1999 may be considered for disposal at sea including, dredged material, fisheries waste, ships, inert matter, uncontaminated organic matter and bulky substances. Discharges from land or from normal ship operations (such as bilge water) are not considered disposal at sea, but are subject to other controls.

All disposal at sea is controlled federally by a system of permits issued under CEPA, 1999. The objective of the ocean disposal legislation under CEPA, 1999 and its regulations is to prevent marine pollution from the uncontrolled disposal of waste or other matter at sea. Permits are granted on a case-by-case basis after an application and review process. Permits typically govern timing, handling, storing, loading, placement at the disposal site, and monitoring requirements. The permit assessment phase involves public notice, an application that provides detailed data, a scientific review and payment of fees. This system has been in place since 1975 and was included in CEPA, 1988.

CEPA, 1999, by updating controls and provisions on disposal at sea, allowed Canada, in May 2000, to become the 10th country to accede to a new international agreement on the prevention of pollution from the disposal of wastes at sea called the 1996 Protocol to the London Convention 1972.

CEPA, 1999 takes a precautionary approach to ocean disposal. It now includes on Schedule 5, as does the Protocol, a list of substances that may be disposed of at sea. By contrast, CEPA, 1988 required regulations to stipulate what could not be disposed at sea. A second change between the two Acts is that CEPA, 1999 requires the creation of a National Action List which establishes "levels" above which disposal would not be allowed to limit harm to the environment and human health.

The Ocean Dumping Regulations, 1988, which had to be updated for CEPA, 1999, contained specific details on how to assess whether a waste can be disposed of at sea, what fees to pay for an application and what information to supply in a permit application or in a report following emergency disposal. The regulatory changes required to align to CEPA, 1999 were considered to be too significant for a simple roll-over of the 1988 regulations. In fact, however, the regulatory changes codify existing practices.

The Disposal at Sea Regulations under Division 3, Part 7 of the CEPA, 1999 replace the Ocean Dumping Regulations, 1988 under CEPA, 1988, with the exception of the permit application form. The Regulations also codify national policies (contained in Users Guide to the Application Form for Ocean Disposal, EPS 1/MA/1), in place since 1993-94 which explain how to assess waste or other matter for disposal at sea. The provisions for the permit application form are set out under separate Ministerial regulations called the Regulations Respecting Applications for Permits for Disposal at Sea.

The Disposal at Sea Regulations are relevant to a specific group of government and non-government organizations (NGOs) interested in permits that are issued mainly for the disposal of dredged material (sediment moved to deepen shipping channels etc.) fisheries waste, or ships that cannot be recycled. Environmental non-government organizations (ENGOs) may be interested in assuring that disposal at sea is controlled in an environmentally defensible manner. Native groups may be interested in ensuring that ocean disposal will not impact their environment or activities. The Regulations are also relevant to ship masters that are forced to dispose of a substance at sea to avert a danger to human life or a ship.

The Regulations do not introduce any substantive changes to current practices. Their aim is to bring existing regulation and policy together into a clear, transparent regulatory regime using language consistent with CEPA, 1999.

Specifically, this is what has been done to make the new Regulations consistent: The application fee from the previous Regulations is rolled over without change. There are minor wording changes to the information required under section 130 (emergency disposal, or disposal for safety reasons) to make the language consistent with the new CEPA, 1999 and to clarify the information to be included in the report filed. Clarifications of the information include the depth at the emergency disposal site, the date and time of disposal, and the action taken to minimize the risk to health and the environment during emergency disposal.

The provisions of CEPA, 1999 (Articles 9 and 10 of Schedule 6) require the development of a National Action List to evaluate waste or other matter being considered for disposal at sea. In selecting substances for inclusion on the National Action List, priority is given to substances that are toxic, persistent, bioaccumulative and emanating from human activities. The Regula-tions provide the required National Action List which is taken from the national policy on assessing wastes developed in 1993- 94 and published in a national user's guide (EPS 1/MA/1). The National Action List is an evaluation process which uses chemical screening levels (Lower Level) to represent a level of no concern and marine toxicity tests and, where necessary, bioaccumulation tests to determine the level above which ocean disposal is prohibited (Upper Level).

The consideration of alternatives to regulation was limited by several factors. Section 355.1 stipulates that regulations existing under CEPA, 1988 that are inconsistent with the CEPA, 1999 may remain in force for only two years from the day on which the new Act was assented to, and thus the provisions of the Ocean Dumping Regulations, 1988 will cease to be in force as of September 14, 2001.

Using a voluntary approach was not appropriate as these practices have been regulated since 1975 and have proven effective. De-regulation would result in a weakening of environmental controls, particularly with respect to information requirements, and regulated levels as per the National Action List.

CEPA, 1999 allows that issues related to assessment and decision- making in Part 7, Division 3, be controlled under Governor in Council regulations, while an application form and its contents may be controlled under Ministerial regulations. The application form and its contents were proposed as Ministerial regulations.

For the remainder of the issues, the only appropriate alternative was to repeal the Ocean Dumping Regulations, 1988 and create the Disposal at Sea Regulations.

No additional costs to the private sector will result from the Regulations as information to be submitted is practically the same as current regulations and current policy which has been in place since 1994. Minor wording changes to the information required under section 130 (emergency disposal, or disposal for safety reasons) have been made to make the language consistent with the new CEPA, 1999 and to clarify the information to be included in the report filed. Clarifications to information include the depth at the emergency disposal site, the date and time of disposal, and the action taken to minimize the risk to health and the environment during emergency disposal. As emergency disposals are very rare (less than one every five years) and the information added is basic, no cost consequences are foreseen.
The National Action List mechanisms for screening waste have been in place as policy since 1994. The concentration for specific chemical constituents have been in place since 1975 for cadmium and mercury and since 1994 for PAHs and PCBs. No new costs to applicants are foreseen.
The application fee has been in place since 1993 under the Ocean Dumping Regulations, 1988 and is rolled-over unchanged. No new costs to applicants are foreseen.

The Department of the Environment's costs to administer the Regulations will not change. No change to the costs of other departments is foreseen.

The Regulations contribute to ensuring transparency, fairness and consistency by defining what is expected under an emergency report and how to assess material proposed for disposal at sea using a National Action List.
They consolidate existing policy and regulation into one package which provides stakeholders with a clearer regulatory regime for the protection of the marine environment and human health.

The Regulations address modifications in language in CEPA, 1999, and assist in ensuring a fair and consistent assessment process for material to be disposed of at sea. The Regulations, through the National Action List allow the Federal Government to meet its requirements under CEPA, 1999 and the 1996 Protocol to the London Convention 1972.

The Regulations will provide continued assurance that adequate information is provided to allow for the best followup action on emergency disposal, and greater assurance that material is assessed according to a precautionary approach which provides for the protection of the marine environment and human health.

Over the last 10 years, extensive consultations have been held with federal and provincial government, industry, environmental and native groups, on the issues relating to these controls on disposal at sea. Consultations on the Regulations were also held in 1999 with the regulated community, who generally accepted that changes would not affect their current practices. Details of the consultations are below.

The Regulations have been anticipated for several years and consultation on their basic content began in 1991 with a general discussion paper on modifying the form and fees. A subsequent discussion paper on the other suggested changes was mailed in 1993 to about 600 individuals and organizations interested in disposal at sea issues. Stakeholders included federal and provincial government, industry, native groups and environmental groups. This mail-out was supplemented with stakeholder meetings held in Newfoundland, Nova Scotia, New Brunswick, Quebec, British Columbia and the Northwest Territories. Further discussion papers were mailed and consultation meetings were held in 1994 and 1997. In each of these consultations, the progress towards these planned regulatory changes were explained and comments were invited. Consultation reports responding to comments were generated and distributed to participants. Consultations were conducted in the spring and summer of 1999, following the preparation of the drafting instructions for these Regulations. Major clients (dredgers and excavators from government and industry) were invited to consultation meetings, while a broader list of clients were offered copies of the proposed text for comment.

Stakeholders provided mixed comments regarding the requirements of the National Action List. Larger volume applicants (Port Corporations, industry, Government clients who apply to dispose of more than 10,000 cubic metres of sediment or soil per year) generally had no objections to the assessment procedures. Some suggested that the process of using toxicity testing was helpful and beneficial, and allowed additional options over chemical testing alone.

Smaller volume applicants (those disposing of less than 10,000 cubic metres per year) continued to feel that the testing of a minimum of four chemical parameters, valid for up to four years, was excessive and requested that small volume users be exempt from testing under most circumstances. The Department of the Environment was unable to grant this request to de-regulate, as smaller volumes do not necessarily mean reduced contamination and small projects in the vicinity of shipping docks or marinas may, in some cases, present greater risk than larger projects farther removed from human activity.

Although fees will not be increased from the 1993 levels, applicants, especially small volume clients, requested a reduction in the fees and a breakdown of costs. These fees were prescribed based partly on an estimate of the direct costs to the disposal at sea program for administering and assessing applications and publishing permits. Other factors were considered in setting the fee, such as:

Assessment procedures for small and large volume applications are the same and thus maintaining a single fee for all applicants continues to appear the most reasonable option. Revenue generated by the application fee has averaged about $225,000 per year since 1993 and does not cover the direct costs of administering permit application assessment and publication. Direct costs are in the order of $425,000 per year. A decrease, in the fees or an increase to meet actual costs is not planned at this time.

Upon publication in the Canada Gazette, Part I on February 17, 2001, the private sector and general public had 60 days to provide the Minister with comments which would be taken into consideration prior to the publication of the Regulations in the Canada Gazette,Part II.

No substantive comments on the Regulations were received from stakeholders during the comment period which ended April 19, 2001. Comments received by stakeholders were in the form of questions. Stakeholders asked for greater clarification about disposal at sea and CEPA, 1999 itself, which was provided. Commonly asked questions and their answers were posted on Environment Canada's Green Lane Web site.

The only comment of substance, came from program personnel during a February 2001 ocean disposal manager's meeting in Vancouver. Comments were about how the required toxicity test methods were identified in the Regulations. It was suggested that a clarification was needed to tell applicants which biological test methods they should use. The new legal wording lists tests by name so that the methods that are currently required will continue to be required. Slight translation revisions were also made to the Regulations to ensure consistency between the texts in both official languages.

Since the Regulations are promulgated under the Canadian Environmental Protection Act, 1999, the Compliance and Enforcement Policy implemented under the Act will be applied by CEPA enforcement officers. The policy outlines measures designed to promote compliance, including education, information, promoting of technology development and consultation on the development of regulations.

When verifying compliance with these Regulations, CEPA enforcement officers will abide by the Compliance and Enforcement Policy, which also sets out the range of possible responses to violations: warnings, directions and environmental protection compliance orders issued by enforcement officers, ticketing, ministerial orders, injunctions, prosecution, and environmental protection alternative measures which are an alternative to a court trial after the laying of charges for a CEPA, 1999 offense. In addition, the policy explains when Environment Canada will resort to civil suits by the Crown for costs recovery.

If, inspection, investigation or following the report of a suspected violation, a CEPA enforcement officer confirms that a violation has been committed, the enforcement officer will select the appropriate response, based on the following criteria:

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