REGULATORY IMPACT ANALYSIS STATEMENT

Regulations Respecting Applications for Permits for Disposal at Sea

(This statement is not part of the Regulations.)

This statement describes the Regulations Respecting Applications for Permits for Disposal at Sea, which are Ministerial regulations under Division 3, Part 7, of the Canadian Environmental Protection Act, 1999 (CEPA, 1999), and which replace, in part, the Ocean Dumping Regulations, 1988 promulgated under CEPA, 1988.

The other parts of the Ocean Dumping Regulations, 1988 have been incorporated into the Disposal at Sea Regulations, which remain Governor in Council regulations.

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 Canadian Environmental Protection Act, 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.

The application form was originally published in 1993 under amendments to the Ocean Dumping Regulations, 1988. This form was adopted to gather information needed to meet the needs of CEPA, 1988, Canadian policy, and what was to become the 1996 Protocol to the London Convention 1972, an international agreement on the prevention of pollution from the disposal of wastes and other matter at sea.

Canada formally acceded to the 1996 Protocol in May 2000 after incorporating the necessary principles and provisions on disposal at sea into CEPA, 1999. The provisions include a mechanism or framework to be used for assessing wastes intended for ocean disposal. The Waste Assessment provisions are found in Schedule 6 of CEPA, 1999.

The Regulations Respecting Applications for Permits for Disposal at Sea seek to ensure that adequate and appropriate information is provided to allow the Department of the Environment to properly assess waste or other matter intended for disposal at sea as detailed in Schedule 6. The Regulations ensure consistency of the information provided in support of an application and provide a format for presenting the specific assessment requirements of the Disposal at Sea Regulations.

There are no changes to the form from the 1993 version, except the following: The addition of e-mail addresses, and site drawings, making the language, headings and references to the Act consistent with CEPA, 1999 and providing minor clarifications. In addition, the regulation-making power for the form under CEPA, 1999 has changed, so that the Regulations are now made by the Minister of the Environment rather than by the Governor in Council. Provisions for the submission of the information in electronic format were added to improve efficiency, ease of transmittal for the applicant and enable entry of environmental and effects information into the Ocean Disposal database.

The form requests an identification of what is to be disposed, by whom, where, when, how and why. It requests a comparative assessment of alternatives to disposal at sea. It then requires the history of the load site and the chemical, physical and biological characteristics of the waste or other matter to be disposed of. The applicant must provide information on the location of the load site with respect to potential pollution sources and of the disposal site with respect to sensitive areas. Special mitigation and timing restrictions are also requested.

The Regulations Respecting Applications for Permits for Disposal at Sea 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) and native groups may be interested in assuring that disposal at sea is controlled in an environmentally defensible manner.

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.

Similarly, 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.

CEPA, 1999 moved the regulation-making power concerning the application form from the Governor in Council (GIC) to the Minister. This was done to enable the Department to update basic information requirements more readily. The form, therefore, needed to be moved from GIC regulations into separate "Form" regulations, issued by the Minister.

The information on the application form remains substantively unchanged. Language and numbering appropriate to the new Act are used and the Regulations are issued by the Minister rather than the Governor in Council. There is a requirement added to questions 17 and 18 to provide drawings of the load and disposal sites. These drawings have been requested in practice in the past, so the formal addition to the requirements should not cause an increase in the work load. E-mail addresses are also requested. No additional costs are foreseen as a result of these Regulations, as the private sector will not have to submit additional information.

No additional costs will result to the Department of the Environment or to other government departments from the Regulations, as the information to be provided will remain essentially unchanged from the 1993 form.

The Regulations contribute to ensuring transparency by clearly specifying information requirements for the application form for disposal at sea. The information is used in deciding on the appropriateness of issuing a permit for sea disposal of a particular waste or other matter.

The Regulations address modifications to CEPA, 1999 (section number changes, language adjustment), and assist in ensuring national consistency in the level of information required for a permit application.

With the change in authority from Governor in Council regulations to Ministerial regulations, it will be easier to keep the form updated to reflect ongoing concerns and trends in waste assessment.

Allowing the electronic submission of information should increase the efficiency of processing and allow information to be added more easily to the National Ocean Disposal database. This information will assist in building a picture of the environmental health of dredging and ocean disposal sites in Canada and facilitate management action and adjustment of regulatory controls in the future.

The Regulations will continue to provide the basis for gathering sufficient information for assessing wastes for disposal at sea based on a precautionary approach which provides for the protection of the marine environment and human health.

Initial consultation on the Regulations occurred in 1991 and involved stakeholders from federal and provincial governments, industry, and environmental and native groups. Comments were addressed in a consultation report and were tabled as part of the Regulatory Impact Analysis Statement attached to the 1993 amendments to the Ocean Dumping Regulations, 1988. Since that time, the form has been in use and the information needs remain constant. Updates are mainly to make the form consistent with the regulatory authority, the language and numbering of CEPA, 1999.

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 generally accepted that changes would not affect their current practices. Details of the consultations are below.

During consultations, stakeholders asked whether the requirements of the Canadian Environmental Assessment Act could be added to this form to avoid duplication of effort with respect to environmental requirements on a given project. It was felt that this would go beyond the scope of the Regulations, but that guidance documents should be generated to help applicants avoid unnecessary duplication.

There was a request to clarify that some of the information stipulated on the form could not always be supplied before the permit was issued. The carrier used to conduct the disposal, for example, often can not be hired until the permit is obtained. It was agreed that a note would be put on the form, at the appropriate questions, allowing that information to be supplied as soon as available before the start of the disposal activities.

There was a general request to reduce the information requirements. As the information requirements are set based on the stipulations both in CEPA, 1999 and in the 1996 Protocol to the London Convention to which the Government of Canada has acceded, requirements cannot be reduced.

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 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.

Since these 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 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 violation has been committed, the enforcement officer will select the appropriate response, based on the following criteria:

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