Businesses’ Environmental Obligations at a Time of Economic Reopening

Over the next few days and weeks, Quebec will gradually reopen its economy. As announced by the government on April 28th, retail businesses will be the first to reopen, followed by manufacturing establishments that had not qualified as "priority" businesses by the Quebec government.

Reopening the Economy

The economy’s reopening will be undertaken with variable geometry. First of all, as of May 4, 2020, retail businesses reopened in areas outside Montreal, Laval and other municipalities known as the "crown of Montreal", namely the 80 other municipalities members of the Communauté métropolitaine de Montréal, as long as they have an entrance located directly on a street, not in a shopping mall, and usually opened to customers.

In the case of the Montreal area, businesses will reopen when the health situation will be better controlled.

Industrial Establishments 

On the industrial level, the government determined at the beginning of the COVID-19 pandemic that certain types of industries were considered essential and should continue to operate in order to meet the basic needs of the Quebec population. These are industries operating in the following sectors:

• Food production;
• Wood products and silvicultural work;
• Medical device manufacturing;
• Chemical product manufacturing;
• Sanitary product manufacturing;
• Microelectronics component manufacturing;
• Defence manufacturing and maintenance;
• Mining;
• Industries that make up the supply chain of the above industries as well as businesses or other activities deemed to be essential.

Large industrial complexes, such as those in the aluminum sector, were required to minimize their operations in order to be ready for the eventual resumption of production.

As a result, all industrial establishments are able to resume production activities throughout Quebec as of May 11^th, but with certain restrictions:

• companies employing 50 workers or less per shift may resume operations without any constraints on the number of workers on site; and
• companies that have more than 50 workers on their industrial site may not employ on each shift more than 50% of any number of workers in excess of 50.

These restrictions on the number of employees will be lifted on May 25^th.

On May 11^th, construction hasl also resumed.

Basic Health Obligations

Manufacturing companies will be able to resume their activities as long as they comply with basic health requirements in the context of the current pandemic, such as:

• regular and frequent hand washing;
• coughing and sneezing into one's elbow;
• maintaining a distance of 2 metres between people;
• respecting the guidelines established by the Commission des Normes, de l'Équité, de la Santé et de la Sécurité au Travail (CNESST), which are available on the Website of this agency..

Environmental Obligations

During the health crisis, the Ministère de l'Environnement et de la Lutte contre les changements climatiques ("MELCC") prescribed certain temporary exceptional measures under Section 31.0.12 of the Environment Quality Act ("EQA") to allow the initiation of industrial activities or production increase in sectors deemed a priority by the government, particularly for medical equipment manufacturing.

This exemption is valid only for the duration of the state of health emergency. At the end of the state of health emergency (the duration of the health emergency is unknown as health emergency orders are regularly extended for periods of seven, eight or ten days), the temporarily exempted activities must cease "as soon as possible".

After the expiry of the MELCC emergency exemption procedure, companies wishing to continue the activities benefiting from an exemption will have to file an application for authorization to the Minister under Section 22 EQA or produce a statement of compliance, as the case may be. Projects eligible for a declaration of compliance will have to comply with the procedures and terms and conditions applicable to the eight categories of projects eligible under existing laws and regulations, namely:

• Certain projects related to the remediation of contaminated land;
• Certain projects related to the receipt of contaminated soil;
• Certain water supply, sewerage, wastewater treatment and drinking water production projects;
• Certain bituminous concrete plant projects;
• Certain bituminous concrete plant relocation projects;
• Certain livestock site projects;
• Certain projects related to the establishment or expansion of a sand pit;
• The treatment of surface mineral substances in a quarry or sand pit.

A business which resumes its industrial operations after their interruption at the beginning of the pandemic, can do so without requiring any environmental authorization unless there is an increase of production or the introduction a new industrial process which releases new contaminants into the environment or causes otherwise a modification of environmental quality.

Controls by Environmental Authorities

Businesses should be aware that the MELCC continues to operate remotely during the pandemic. Thus, applications for authorizations continue to be processed by MELCC officials. The same is true for environmental monitoring activities, which have, however, been reduced namely to emergency cases, such as cases raising life risks, health and safety of persons or significant risks of damage to the environment.

Monitoring and enforcement measures have also been reduced. It is obvious that businesses continue to be obligated to stop and report contaminant spills into the environment as required by law and regulations.

MELCC also continues to monitor activities deemed essential by the government, such as waste management, drinking water distribution and wastewater treatment. A special regime has been established for training and certification examinations for the sale and use of pesticides and for applications for permits or certificates for the sale or use of pesticides.

The MELCC has relaxed the deadline for mandatory reporting of certain air contaminants. As a result, the deadline for filing these declarations and verification reports, when required, has been extended to July 31, 2020 instead of June 1^st, 2020. Similarly, the MELCC has stated that it will exercise a certain tolerance with respect to the transmittal of the declaration of water withdrawals for the year 2019, which was normally due on March 31, 2020.

The same applies to the payment of the fee for water use for the year 2019, for which no interest or penalty will be charged until further notice.

In its update of May 11, MELCC indicates that the ClimatSol-Plus program, phase 2 which provides financial aid for remediation work on contaminated properties, is suspended indefinitely during the pandemic except for projects deemed “urgent and essential” that could be accepted.

Finally, MELCC mentions that air quality has improved significantly since the pandemic because of a decrease of road traffic.

For 25 years, BCF's mission has been to support Canadian businesses. We know the issues you face and our Environmental Law team is available to help you use the resources at your disposal. Do not hesitate to contact one of our members if you need advice or support.