Regulations under Bill 102: A New Approach Based on the Environmental Risks of Each Project

These new regulations were adopted following the publication of as many draft regulations published in 2018 and 2020, and after intense discussions with stakeholders likely to be affected by this new regulatory regime. These new regulations will take effect on December 31, 2020. Over 200 submissions from citizens, groups, municipalities and businesses were received in response to the draft regulations published in 2018, prompting the MELCC to resume work on the new regulations and publish new draft regulations on February 19, 2020, for public consultation. These new regulations were prepared through a "co-creation" exercise with the stakeholders affected by the new regulations.

According to the MELCC press release issued on September 2, the new regulations will reduce by approximately 30% the number of ministerial authorizations to be filed each year. It also mentions that the MELCC receives 5,000 applications for authorizations annually. However, the 2017/2018 annual report states that the MELCC processed 4,034 applications for certificates of authorization and the 2018/2019 annual report indicates that the same department processed 3,732 applications for certificates of authorization. Experience will show the real impact of these new regulations on the number of environmental authorizations issued annually by the MELCC.

Systematization of a New Administrative Approach

The new regulations are intended to implement a new approach to the administrative management of projects likely to have an environmental impact. Under this new management process, projects likely to produce environmental effects are divided into four categories, based on the significance of the environmental risks associated with each project.

Thus, projects with so-called “high” environmental risks are subject to an environmental impact assessment and review procedure and may potentially be brought before the BAPE.

“Moderate” environmental risk projects are subject to an environmental authorization issued by the MELCC or an official to whom the Minister has delegated the authority to issue such authorizations.

Projects with “low” environmental risks will be subject to a declaration of compliance by the project proponent.

Finally, projects with “negligible” environmental risks will benefit from an exemption and may be carried out freely provided that they comply with the guidelines that were designed for the implementation of projects benefiting from such an exemption.

A Strong and Detailed Regulation

The main regulation relating to environmental authorizations is called the Regulatory scheme applying to activities on the basis of their environmental impact. This 370-article regulation lists and describes the projects subject to an environmental authorization, the projects subject to a declaration of conformity and the exempted projects. It also prescribes the terms and conditions relating to the renewal, assignment, suspension or revocation (at the request of the holder) and termination of an authorization as well as the terms and conditions relating to the declaration of background that the applicant for authorization must produce. This regulation is intended to be the reference regulation for environmental authorizations in Québec law.

Activities With “Moderate” Environmental Risks

The new regulation specifically lists approximately 40 categories of activities deemed to be “moderate” environmental risk activities which will require ministerial authorization before being undertaken. These are quite similar to those listed in the draft regulations originally published for public consultation on February 14, 2018.

The projects listed in the regulation are not the only ones subject to the environmental authorization requirement since the second paragraph of section 22 of the EQA applies this requirement to any other activity likely to release contaminants into the environment or modify its quality, including industrial activities, unless such an activity benefits from one of the general exemptions provided for in sections 51 to 54 of the new regulation.

For projects requiring a ministerial authorization, the regulation sets out the general and specific information that the project proponent must submit to the MELCC in order to obtain the required ministerial authorization. The regulation also specifies the types of projects that will be subject to the new “climate test” required by Bill 102. A background declaration and the fees required by the ministerial order on this matter must also be included with the application for authorization.

“Low” Environmental Risk Activities

The new regulation specifically lists "low" environmental risk projects that, instead of being subject to ministerial authorization, are eligible for a declaration of compliance to be filed with the MELCC by the project proponent at least 30 days before the project begins. The project must begin within two years of the filing of the declaration of conformity. In reality, for 28 of the 40 categories of activities subject to ministerial authorization, the regulations indicate which activities are eligible for a declaration of conformity provided that certain technical parameters and conditions, as described in detail in the regulations, are met. If the activity is carried out without complying with the conditions, restrictions or prohibitions set out in the regulations, the activity will be deemed to be carried out without a ministerial authorization, making the initiator of the activity liable to remedies, sanctions, fines and any other applicable administrative measures in the event of non-compliance with the EQA.

In this regard, it should be noted that the carrying out of an activity without a ministerial authorization required by the EQA makes the offender liable to administrative monetary penalties of $5,000 or $15,000, depending on whether the offender is an individual or a legal entity, or a minimum fine of $5,000 or $15,000, depending on the same circumstances.

It is worth mentioning that the regulations clearly specify the technical and other information to be included in the declaration of conformity. As well, fees payable under the Ministerial Order dealing with this matter must be included with the declaration of conformity.

“Negligible" Environmental Risk Activities

Finally, the new regulation sets out, for 29 of the 40 categories of projects, a whole series of activities with environmental risks deemed "negligible" which will be exempted from any prior administrative formalities and can therefore be freely carried out provided that they comply with all the technical parameters relating to the carrying out of the activity benefiting from an exemption.

In particular, exemptions provided for in the regulation include, in new wording, regulatory exemptions that had already been provided for since 1975 with respect to section 22 of the EQA, as well as the so-called “administrative” exemptions that had been developed by MELCC officials without having been the subject of a regulatory instrument. Indeed, the MELCC routinely applied these “administrative” exemptions and informed applicants that these activities, thus exempted, could be carried out without a certificate of authorization under section 22 of the EQA.

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