Issues and possible approaches, Canadian Environmental Protection Act: discussion paper, chapter 4

4. Preventing marine pollution

• 4.1 Permit storage of carbon dioxide (CO₂) in sub-seabed geological formations
• 4.2 Prevent marine pollution from ocean fertilization and other marine geo-engineering activities
• 4.3 Prevent marine pollution from other placement activities
• 4.4 Diversify CEPA’s enforcement tools in the disposal at sea regime
• 4.5 Improve the functioning of the disposal at sea regime
• 4.6 Extend the authority to revoke or suspend permits

Surrounded by the Arctic, Atlantic and Pacific Oceans, Canada has a 243,790 km long coastline - the longest coastline in the world - which also includes the coastline of the country's 52,455 islands. The oceans are an important part in our country’s history and economy. Ports and harbours are used for shipping various commodities and regular dredging of waterways is necessary to keep these open and safe. The resulting dredged material is typically disposed of at sea. In addition, certain other low-risk materials are also routinely disposed of at sea.

Since 1975, Canada has prevented marine pollution from disposals at sea of waste and other matter by federally controlling them via a permitting system. This system is designed to ensure Canada’s compliance with its obligations under two international treaties to which it is Party: the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol) and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (London Convention).

Consistent with the London Convention and its Protocol, Division 3 of Part 7 of the Canadian Environmental Protection Act (CEPA) prohibits the disposal of substances into waters or onto ice from a ship, aircraft platform or other structure, unless it is done in accordance with a permit issued by ECCC. Incineration at sea, and the import or export of a substance for its disposal at sea, are also prohibited.

Only a small list of wastes or other matter, which are listed in Schedule 5 of the Act, can be considered for permits. These are individually assessed to make sure that disposal at sea is the environmentally preferable management option and that there are no practicable uses for the material, that pollution is prevented, and that any conflicts with other legitimate uses of the sea are avoided. Permit conditions ensure the quantities, disposal sites and special precautions are well considered.

The program that manages the disposal at sea regime operates on a cost-recovery basis. ECCC recovers costs associated with permit processing and with monitoring of representative disposal sites.

The disposal at sea regime is sound and well-functioning. However, improvements to CEPA could be made to bring it up to date with recent changes to the London Protocol, to further protect the marine environment by changing the way specific activities are controlled, and to strengthen the regime’s enforcement tools.

4.1 Permit storage of carbon dioxide (CO₂) in sub-seabed geological formations

Issue

Carbon capture and storage involves the extraction of CO₂ from gas streams typically emitted during electricity production, fuel processing and other industrial process, and the storage of that CO₂ in geological formations. CEPA prohibits the storage of CO₂ in sub-seabed geological formations. This was consistent with the London Protocol, until it was amended in 2006 and 2009 to authorize sequestration of CO₂ in sub-seabed geological formations and to transport CO₂ across international borders for the purpose of sequestration. With those amendments, the global community recognized the importance of mitigating the impacts of climate change and that the storage of CO₂ at sea could be done without causing marine pollution if appropriate safeguards are put in place.

Possible Approach to Address the Issue

CEPA could be amended to expressly authorize the Minister of ECC to issue permits for the storage of CO₂ in sub-seabed geological formations and to allow for import and export of CO₂ for the purpose of sequestration.

The permitted activity would occur in a way that protects the marine environment, as proposed projects would be subject to an assessment and permit conditions imposed by the Minister. This would reflect the amendments made to the London Protocol.

4.2 Prevent marine pollution from ocean fertilization and other marine geo-engineering activities

Issue

Amendments to the London Protocol were adopted on October 18, 2013 to create a mechanism to specifically address ocean fertilization^Footnote5 and other marine geo-engineering activities - defined as “a deliberate intervention in the marine environment to manipulate natural processes, including to counteract anthropogenic climate change and/or its impacts, and that has the potential to result in deleterious effects, especially where those effects may be widespread, long lasting or severe”. The amendments to the Protocol prohibit ocean fertilization, butallow the issuance of permits in cases where the activity is assessed as legitimate scientific research and not contrary to the aims of the Protocol. The amendment creates a mechanism such that additional marine geo-engineering activities can be controlled similarly in the future. The current ocean disposal provisions in CEPA prohibit ocean fertilization. However, the Act could be amended to be more explicit as to how it addresses this issue, to provide the necessary authorities for the issuance of permits for legitimate scientific research and to include the other elements of the 2013 London Protocol amendments.

Possible Approach to Address the Issue

CEPA could be amended to expressly codify the recent changes to the London Protocol. This could be considered along with item 4.3 below.

4.3 Prevent marine pollution from other placement activities

Issue

CEPA’s disposal at sea regime (CEPA DAS) mirrors the London Protocol by not subjecting specific activities to the disposal prohibitions, and therefore not requiring the issuance of permits in order for them to occur. This is the case for the “placement” of a substance for a purpose other than its mere disposal, if the placement is not contrary to the purpose of CEPA DAS and the aims of the London Protocol. This is illustrated below:

It is sometimes difficult for a potential proponent to determine whether the placement of a given substance is (or is not) contrary to the purpose of CEPA DAS and the aims of the London Protocol, and therefore whether it should be subject to the disposal prohibitions. In addition, the involvement of ECCC is necessary in certain cases, to ensure that a placement activity is performed in a way that minimizes impacts on the marine environment.

If a proponent determines that his or her activity is a placement that is not contrary to the purpose of CEPA DAS or the aims of the London Protocol, there is no explicit obligation to discuss that placement activity with ECCC, nor for the activity to be conducted subject to any conditions or mitigation measures that ECCC may suggest. In addition, CEPA does not expressly authorize the Department to require monitoring or request additional information related to that activity.

Possible Approach to Address the Issue

In addition to codifying the 2013 London Protocol amendments, which are limited to addressing marine geo-engineering activities, CEPA could be amended to create a regime that also resolves the lack of certainty in regards to specific placement activities that have proved problematic in the past, and that provides a framework to facilitate the control of additional placement activities in the future.

This could involve the following elements:

• Clarification of the delineation between “disposal” and “placement”
• Clarification of the status of specific placement activities that have proved to be problematic in the past by:
  • Expressly prohibiting certain placement activities that are contrary to the purposes of CEPA DAS and the London Protocol, such as ocean fertilization.
  • Prohibiting other placement activities that are contrary to the purposes of CEPA DAS and the London Protocol, unless done in accordance with a permit, such as:
    • legitimate scientific research on ocean fertilization;
    • the use of dredged material to create an artificial island.
  • Clarifying that specific placement activities that are not contrary to the purpose of CEPA DAS and the London Protocol - if they are done in accordance with specific criteria- can proceed without a permit, such as:
    • moving sediment when laying cable;
    • burial of human remains at sea;
    • using sampling equipment for scientific purposes.
• Creating a mechanism that could be easily updated to clarify the status of additional placement activities in the future.

4.4 Diversify CEPA’s enforcement tools in the disposal at sea regime

Issue

Unlike other parts of the Act (e.g., sections 95 or 99 in Part 5), there is no express authority in Division 3 of Part 7 for the Minister to order a person who has contravened the division, or a permit issued under it, to take specific actions to remedy the damage caused by the contravention. There are also no express obligations on that person to take immediate remedial measures when such a contravention has occurred.

Possible Approach to Address the Issue

CEPA could be amended to add the express authorities to direct a person who has contravened Division 3 of Part 7 of CEPA or a disposal at sea permit to take specific measures to remedy the impacts of the offense, and/or add specific requirements on such a person to take immediate remedial measures. This is related to the approach identified in item 6.3, related to remedial measures.

4.5 Improve the functioning of the disposal at sea regime

Issue

A number of minor issues impact the functioning of the regime:

• Under paragraph 127(2)(d) of the Act, a disposal at sea permit applicant is required to publish a notice of the application in a local newspaper circulating in the vicinity of the proposed site of the loading or disposal. Some Canadian communities do not have newspapers of local circulation.
• In order to dispose of a substance in Arctic waters, a proponent must seek both a disposal at sea permit under CEPA and an authorization under the Arctic Waters Pollution Prevention Act.
• CEPA does not explicitly provide that disposal at sea permits can be transferred in cases where, for example, a company is sold or restructured during the term of a valid permit. This creates unnecessary administrative burden.

Possible Approach to Address the Issue

CEPA could be amended to address these issues as follows:

• Formally allow the Minister to specify any manner for the publication of notices of application.
• Reduce duplication between CEPA DAS and the Arctic Waters Pollution Prevention Act.
• Expressly allow companies that have obtained permits to transfer them, subject to regulations.

4.6 Extend the authority to revoke or suspend permits

Issue

Subsection 129(3) of the Act authorizes the Minister to suspend or revoke a disposal at sea permit or vary its conditions, in very specific circumstances (consideration of Schedule 6 or in relation to the establishment of a board of review). In cases where the Minister suspects that a disposal at sea permit holder has contravened the permit or its conditions, there are no express authorities in the Act to suspend or revoke the permit. Express authority would be useful to stop a proponent from continuing with a disposal, allowing ECCC to assess if any damage to the marine environment resulted from the proponent’s contravention.

Possible Approach to Address the Issue

CEPA could be amended to clarify that the Minister may suspend or revoke a permit when she suspects that a proponent has contravened the permit or its conditions.