Moving to a project list approach under the Environmental Assessment Act

Overview of proposed regulations and related actions

The July 2020 amendments to the Environmental Assessment Act (EAA) enabled, among other things, the move to a project list approach, which means that projects that require a comprehensive environmental assessment (EA) (previously known as an individual EA) will be listed in the regulation rather than being based mainly on who is proposing the project.

Taking this approach will better align Ontario with other jurisdictions across Canada, who use project lists to determine the types of projects that must complete an EA. The shift to a Comprehensive EA Project List would ensure environmental safeguards are in place and allow us to align some of our thresholds with those of the federal government for key sectors.

Under the proposal, most project types that currently require a comprehensive EA will continue to need one. However, we are proposing a few changes to allow some projects to instead follow a streamlined process which will continue to ensure environmental oversight and robust consultation prior to the project being able to proceed.

To move to a project list approach, we are proposing the following:

• designating and exempting regulation: new regulation identifying the projects that would be subject to comprehensive EA requirements (comprehensive EA projects regulation); this regulation would also replace O. Reg. 101/07 (Waste Management) and O. Reg. 116/01 (Electricity Projects), and the exemption in O. Reg. 231/08 (Transit Projects and Metrolinx Undertakings). The Waste Projects and Electricity Projects regulations would be revoked, and the Transit Projects regulation would be amended.
• amendments to O. Reg. 231/08 (to maintain the Project Assessment Process in O. Reg. 231/08)
• amendments to class environmental assessments (to ensure alignment between class EAs and the projects that would be subject to comprehensive EA requirements) and revoking the Class EA for GO Transit Facilities
• new regulation exempting some projects from the EAA (this new regulation will replace Regulation 334 General)
• complementary amendments to regulations made under statutes other than the EAA
• complementary amendments to and revocations of regulations and orders made under the EAA
• new transitional and general matters regulation, which sets out transition rules and general matters.

A summary of these proposed regulations and related actions is set out below. You can read more details on the proposed regulations, class EA amendments, and amendments to and revocation of regulations and orders in the attached document Moving to a Project List Approach under the Environmental Assessment Act. The drafts of the key proposed regulations are also attached to this notice.

Background

On July 21, 2020, the COVID-19 Economic Recovery Act, 2020 was passed. It included:

• amendments to the Environmental Assessment Act (EAA)
• related consequential amendments

You can read the Environmental Registry notice for these amendments at https://ero.ontario.ca/notice/019-2051.

These amendments enable the next steps in modernizing Ontario’s environmental assessment program, helping to:

• ensure strong environmental oversight
• facilitate Ontario’s economic recovery

On September 11, 2020, we proposed a list of projects which would be subject to comprehensive EA requirements under the new Part II.3 of the EAA (policy proposal). You can read the Environmental Registry notice at https://ero.ontario.ca/notice/019-2377.

In that notice, we indicated we would seek input on a draft regulation based on feedback we received on the proposed project list.

Proposed comprehensive EA projects regulation

The sections below provide a summary of the proposed comprehensive EA projects regulation that would identify the projects subject to a comprehensive EA.

For detailed information on each of the matters below, we have attached:

• Moving to a Project List Approach under the Environmental Assessment Act, and
• the proposed comprehensive EA projects regulation as well as other related proposed regulations

Waste management, electricity and transit projects

We are proposing to revoke the:

• Electricity Projects regulation (O. Reg. 116/01);
• Waste Management Projects regulation (O. Reg. 101/07),

And to amend and rename the:

• Transit Projects and Metrolinx Undertakings regulation (O. Reg. 231/08)

These three regulations designate:

• projects that require an individual EA (now known as a comprehensive EA)
• projects that are eligible to follow a “streamlined” EA process, namely projects that require an individual EA but are conditionally exempt subject to following the streamlined process, such as the electricity or waste management screening processes, or the transit project assessment process, and
• projects that are unconditionally exempt from EA requirements

We are proposing to continue the waste, electricity and transit project designations through the proposed comprehensive EA projects regulation, including providing access to a streamlined process for some projects and unconditional exemptions for others consistent with the requirements below.

We are also proposing some adjustments due to the structure of the new regulation and clarification of some terminology.

Electricity projects

We are proposing that electricity projects, including those below, be required to complete a comprehensive EA:

• transmission stations that are designed to operate at a voltage of more than 500kV and that are not associated with certain generation facilities
• hydroelectric facilities with a capacity of greater or equal to 200 megawatts
• generating facilities that use oil, with a capacity greater than 5 megawatts
• Project Modifications – significant modifications to electricity projects will continue to require a comprehensive EA, consistent with current provisions as noted in section 8 of the proposed comprehensive EA projects regulation.

The ministry recently consulted on a proposal to update the thresholds that determine the type of environmental assessment process required for establishing a transmission line not associated with generation. The information on this proposal can be found at https://ero.ontario.ca/notice/019-3937.

With the exception of the proposal to adjust the thresholds for transmission line projects, the electricity projects that currently require a comprehensive EA would continue to require one. We are proposing updated descriptions of the activity that would trigger the EA requirements. The proposed change is that the establishment of the project would be subject, rather than the planning, design, operation, etc. This proposed change would provide consistency with other project types.

We will also maintain the ability to use the streamlined process for those projects that are currently designated and conditionally exempted subject to following the streamlined process. We are not proposing to make any changes to the projects that are unconditionally exempt.

The new regulation will update some terminology for consistency, and make corresponding changes to the Guide for Electricity Projects including reflecting that the Minister is the only decision-making authority related to elevation requests, which are requests that a project following the screening process be elevated to a comprehensive EA.

Waste management projects

We are proposing to require a comprehensive EA for projects including:

Landfills:

• Establishing a landfill greater than 100,000 cubic metres.
• Changing a landfill to increase the total waste disposal volume by more than 375,000 cubic metres
• Changing a landfill to increase the total waste disposal volume by more than 100,000 cubic metres and less than or equal to 375,000 cubic metres if the change would increase the total waste disposal volume by more than 25%
• A change to a landfill that:
  • involves the excavation of waste previously disposed of at the landfill; and
  • the excavation would increase by more than 100,000 cubic metres the amount of waste that could be deposited at the site without any increase in the total waste disposal volume.

Hazardous or Liquid Industrial Waste Facilities:

• Establish a waste disposal site at which hazardous or liquid industrial waste is finally disposed of.
• A change to a landfill for hazardous waste or liquid industrial waste that:
  • results in an increase in the total approved waste disposal volume of the site; or
  • involves the excavation of previously disposed of waste.
• A change to a thermal treatment site at which hazardous waste or liquid industrial waste is subject to thermal treatment that increases the amount of waste that is authorized to be thermally treated at the site on any day.

We are also proposing corresponding updates to the thresholds for determining environmental assessment requirements for certain landfill expansions such that the following projects would be able to use the streamlined EA process for waste management projects:

• Changing a landfill to increase the total waste disposal volume by more than 100,000 cubic metres and less than or equal to 375,000 cubic metres if the change would increase the total waste disposal volume by less than or equal to 25%

Consistent with current requirements, changing a landfill to increase the total waste disposal volume by 40,000 cubic metres or more and less than or equal to 100,000 cubic metres would remain eligible to follow the streamlined EA process.

The proposed revisions will provide that proponents are not able to use the streamlined EA process to do a series of expansions over a defined period of time in order to avoid undertaking a comprehensive EA. The proposed updates to thresholds would not apply to hazardous or liquid industrial waste facilities.

Note: The proposed update is not incorporated into the proposed comprehensive EA projects regulation attached to this proposal notice.

Except for the proposed updates relating to landfill expansions of certain sizes summarized above, the waste projects which currently require a comprehensive EA would continue to require one. We would maintain the ability to use the streamlined process for projects that are currently designated and exempted subject to following the streamlined process. We are not proposing to make any changes to the projects that are unconditionally exempt.

We are also proposing changes to the Guide for Waste Projects, including reflecting that the Minister will be the decision-maker for ordering that a streamlined EA project be made subject to a comprehensive EA, for consistency with other streamlined processes.

Advanced Recycling Projects

Advanced recycling and energy recovery technologies can help recover valuable resources from Ontario’s waste – including hard-to-recycle plastics - and keep it out of landfills. The government continues to consider how best to streamline environmental assessment requirements and other environmental approvals to support the role of advanced recycling in meeting Ontario’s waste diversion goals.

Note: Although no changes to environmental assessment requirements for these technologies are incorporated into the proposed comprehensive EA projects regulation attached to this proposal notice, the ministry has now posted a separate proposal related to advanced recycling facilities (019-4867).  

Transit projects

For transit projects, except for certain new passenger rail projects as noted below, we are proposing to generally maintain the types of projects set out in O. Reg. 231/08 (Transit Projects and Metrolinx Undertakings). The proposed comprehensive EA projects regulation will designate the projects that are currently captured by O. Reg. 231/08 and exempt them subject to following the streamlined process set out in the amended and renamed Transit Project Assessment Process (TPAP) or the applicable class EA.

We are proposing some adjustments to the designations largely to update the terminology for consistency and provide for consistency among proponents subject to the streamlined process.

We are proposing to amend and rename the Transit Projects and Metrolinx Undertakings regulation (O. Reg. 231/08):

• to retain the streamlined process, until a new regulation for streamlined transit projects and the related assessment process is made,
• re-name the streamlined process, to reflect that it will be available for certain Ontario Northland Transportation Commission (ONTC) projects,
• clarify notification requirements, and
• adjust the process to include the ability for the Minister to amend or revoke conditions imposed in a notice given by the Minister to allow the proponent to proceed with a transit project.

The proposed minor amendments to the transit project definitions align with the proposed comprehensive EA projects regulation and the relevant class EAs, including the Class EA for Provincial Transportation Facilities and Municipal Class EA.

We are also proposing:

• to revoke the Class EA for GO Transit Facilities since this class EA is rarely used by Metrolinx as they follow TPAP instead
• to make new rail lines of 50 km or greater subject to comprehensive EA requirements as further summarized below.

Highway projects

We are proposing to require a comprehensive EA for:

• establishing new highways of 75 km or more in length meet specific criteria set out in regulation

Highway projects less than 75 km would be subject to the streamlined EA process set out in the Class EA for Provincial Transportation Facilities (MTO Class EA) which is proposed to be amended to apply to those projects.

This represents a change from current requirements which requires the planning of all new freeways, namely 400 series, irrespective of length, to complete a comprehensive EA.

This proposed approach would align Ontario’s distance with that used by the federal government under the impact assessment legislation for a new all-season public highway that requires a new right of way.

Railway and certain other projects

We are proposing to require a comprehensive EA for the following projects:

• establishing a new railway line (passenger or freight) of 50 km or more.

We are also proposing that the establishment of railway lines (passenger or freight) below 50 km in length and other rail and bus projects by the Ontario Northland Transportation Commission, such as stations, maintenance facilities and storage yards be eligible to follow the renamed TPAP process. Certain ONTC projects which would be constructed to support ONTC bus services are also proposed to be designated. These changes will provide better alignment with other public sector proponents and jurisdictions to promote consistency and clarity.

Railway line projects that would involve adding new tracks alongside and contiguous to an existing line, if undertaken by Metrolinx, ONTC, a municipality or MTO, irrespective of length, would also follow the streamlined process.

This represents a change from current requirements, as new railway projects may or may not trigger an EA process based on who is undertaking the project and whether they are eligible to follow a streamlined process.

You can read:

• Moving to a Project List Approach under the Environmental Assessment Act for additional information, and
• the proposed comprehensive EA projects regulation
• the proposed amending regulation (regulation amending O. Reg. 231/08)

Waterfront projects

We are proposing to make certain waterfront projects in the Great Lakes-St. Lawrence River System subject to comprehensive EA requirements. These projects would involve establishing “works” (e.g. berm, marina, channel, island, beach, pier, wall or riprap), which meet both of the proposed criteria below:

• alter at least 1 km of shoreline, and
• require at least 4 ha of lakebed or riverbed to be filled

We are proposing that this designation apply to waterfront projects in the Great Lakes-St. Lawrence River System, which would be defined as the major water system consisting of:

• Lakes Superior, Huron, St. Clair, Erie and Ontario, and
• St. Marys, Detroit, Niagara, St. Clair and St. Lawrence rivers.

This represents a change from current requirements, where new waterfront projects may or may not trigger an EA process based on who is undertaking the project and whether they are eligible to follow a streamlined process. Waterfront projects which do not meet the proposed comprehensive EA thresholds might have requirements under a class EA process.

Mineral development projects

Mineral development projects are not included in the proposed comprehensive EA projects regulation. Ontario has a long history of regulating mineral development and has a deep understanding of the nature and type of environmental effects that mineral development can potentially create in some circumstances, as well as how to manage such potential effects.

We considered the ability of the current regulatory framework to address what an EA process for a mine would generally require, including public and Indigenous consultation requirements that already apply as part of the existing regulatory obligations. This information helped inform our decision on whether mineral development projects should be included in the proposed comprehensive EA projects regulation.

Mineral development projects will continue to have requirements under streamlined EA processes (as applicable), and proponents can continue to voluntarily carry out a comprehensive EA and fulfill other project-related requirements that would be triggered under legislation other than the EAA. In the past 10 years, nine proponents have volunteered to carry out a comprehensive EA for their mineral development projects. There will continue to be the authority to make specific projects subject to the comprehensive EA requirements.

Proposed amendments to Class Environmental Assessments

Until a project list is in place to designate the projects that would be subject to the streamlined environmental assessment (EA) requirements under Part II.4 of the Environmental Assessment Act (EAA), projects which are subject to a class EA will continue to be required to comply with the class EA. Amendments to certain class EAs will be required to align with the proposed projects and thresholds for certain types of projects that are proposed to be made subject to the comprehensive EA requirements.

The list below identifies the class EAs which we are proposing to amend to align with the comprehensive EA project designations.

Transportation

• Class EA for Provincial Transportation Facilities (MTO Class EA)
• Municipal Class EA

Electricity

• Class EA for Minor Transmission Facilities

Transit

• Municipal Class EA
• Class EA for Provincial Transportation Facilities

Waterfront projects

• Class EA for Remedial Flood and Erosion Control Projects
• Class EA for Resource Stewardship and Facility Development Facilities
• Municipal Class EA
• Government Property Class EA

In addition, we are proposing related amendments to be made to all of the class EAs to facilitate the transition to the new framework. This includes updating terminology and referencing of provisions in the revised EAA, adding text to enhance clarity about which proponents and projects are subject to a comprehensive EA or the specific class EA.

Note: The class EA amendments that are being proposed to ensure alignment between class EAs and the proposed comprehensive EA projects regulation are separate and in addition to the class EA amendments which the ministry proposed in July 2020. Those proposed amendments remain under review. For more information, you can refer to the Environmental Registry of Ontario posting 019-1712.

Proposed amendments to regulations and orders

Regulation 334

Regulation 334 is a general regulation under the Environmental Assessment Act (EAA) which sets out provisions that affect how the Act applies to certain types of projects.

In keeping with the phased approach to modernizing the EA framework and the application of the EAA to projects designated as comprehensive EA projects, many of the provisions of this regulation will not be necessary or are not consistent with the new framework. We are proposing to revoke and replace this regulation with a new regulation.

This also includes a proposal to amend the Land Claim Exemption (currently found in Regulation 334) so that it applies to undertakings related to any settlement of the Algonquin land claim where consultation on particular undertakings has not yet commenced under the Algonquin Land Claim declaration order. The proposal is also to amend the Algonquin Land Claim declaration order so that it would align with the proposed exemption. The Ministry of Indigenous Affairs (IAO) has a robust Indigenous Land Claim Consultation Process that provides a mechanism to address consultation with government agencies, Indigenous communities, and the public for these types of projects and activities. The process is proposed to be followed for projects and activities associated with any Algonquin land claim settlement where consultation has not yet commenced under the Algonquin Land Claim Settlement Declaration Order.

You can read:

• The attached document Moving to a Project List Approach under the Environmental Assessment Act
• the proposed new general regulation (Exemptions from the Act)

Regulations and declaration orders made under Environmental Assessment Act

The existing Environmental Assessment (EA) regulatory framework has, for a variety of reasons, required the implementation of over 100 instruments in the form of site-specific and program-based:

• declaration orders
• exemption orders
• regulations

These documents set out whether or not the Environmental Assessment Act (EAA) applies to the subject matter of the instrument (undertaking) and some include conditions associated with the exemption of the undertaking (conditional exemptions).

We are proposing to:

• make complementary amendments to some of these, such as cross-referencing the revised sections of the EAA, so they continue to be effective
• maintain some so that they continue to provide a framework for some activities
• revoke others to align with the modernized EA framework

Complementary amendments - regulations made under legislation other than Environmental Assessment Act

We are proposing to make complementary amendments to some regulations made under statutes other than the EAA that refer to the environmental assessment regulations proposed to be revoked, or to the provisions of the EAA that have been revised.

Proposed transition regulation

We are also proposing a new regulation that would set out the various transition rules, including how individual EAs that are underway would continue as comprehensive EAs once the regulation is in place.

We are proposing that where an individual EA is underway (i.e. the proponent has submitted a proposed Terms of Reference to the ministry), the transition provisions will provide that the EA process continues uninterrupted once the comprehensive EA projects regulation is made.

You can read:

• The proposed general and transitional matters regulation.

Proclamation

For the purposes of the proposed regulations and related actions in moving to a project list approach under the Environmental Assessment Act (EAA), several sections of the EAA, will be proclaimed in conjunction with the making of the proposed regulations and implementing all related actions. The sections that will be proclaimed will:

• Replace the existing application provision in section 3 of the EAA with an application section making the EAA apply only to designated projects,
• Repeal Part II of the EAA, and
• Add Part II.3

Regulatory impact statement

There are no anticipated direct costs or new administrative burdens associated with the proposed comprehensive EA projects regulation and related actions. While the proposal could result in a minor, temporary increase in administrative costs mostly associated with the time taken to learn about the proposed regulatory framework, the impact to the regulated community is anticipated to be negligible.

The proposed framework will provide clarity and transparency for the regulated community and others when it comes to determining which projects would be subject to the requirements of the Environmental Assessment Act. This would result in a net reduction in the administrative burden on the regulated community.