Follow-up petition on the alleged misinterpretation of exclusion list conditions under the Canadian Environmental Assessment Act, related to the construction of a communications tower in Pontiac, Quebec

Petition

June 30, 2011

Office of the Auditor General of Canada
Commissioner of the Environment and Sustainable Development
Attention: Environmental Petitions
240 Sparks Street
Ottawa, Ontario K1A OG6

Commissioner Scott Vaughan:

This petition is being submitted in accordance with section 22 of the Auditor General Act. Responses from the Ministers of Industry and Environment are requested.

[Original signed by James Riordan]

James Riordan
170 Braun Road
Luskville, Quebec J0X 2G0

Title: Follow-up to environmental petitions 301 and 301-B - Alleged misinterpretation of exclusion list regulations under the Canadian Environmental Assessment Act

Is the Canadian Environmental Assessment Act being misinterpreted? This question persists particularly with regard to how an 82-metre high tower, proposed for construction in Pontiac, Quebec, is being excluded from an environmental assessment under the Canadian Environmental Assessment Act.

It is understood that the Canadian Environmental Assessment Act - Exclusion List Regulations provide for exclusion of projects from environmental assessment based on the size of the projects “footprint”: If the antenna, its supporting structure, or any of its supporting lines has a footprint of no more than 25m2.

Attached are copies of the technical drawings* for the project proposed in the Municipality of Pontiac. Attachment 1* - Elevation de la Tour Autoportante de 82m, illustrates the height of the proposed tower. Attachment 2* - Site vue en plan, illustrates the area of land the project would occupy at ground level.

Industry Canada maintains that this 82-metre tower, with a height equivalent to a 25-storey building, has a footprint of less than 25m2. As a matter of fact, Industry Canada has determined that the proposed project has multiple footprints each occupying an area of less than 25m2 and that the various footprints are not added together to determine the actual “footprint” for the project.

No answer to question regarding the size of the “footprint”

In the previous environmental petition, 301-B, the Industry Minister was asked the direct question: “What is the size of the footprint for the 82-metre tower proposed for installation in Pontiac, Quebec.” While the Industry Minister responded to the petition, he did not answer the question.

The Minister’s response to the question “What is the size of the footprint...” is as follows: “Based on the technical drawings of the proposed installation provided by the proponent, Industry Canada officials have confirmed that the proposed footprint would meet the exclusion requirements...”. This response does not answer the question.

What is revealing is the answer to the next question in environmental petition 301-B: “If the footprint for the proposed tower is less than 25 square meters, how was the area of the footprint calculated?” To this question the Industry Minister replied: “In the case of a multi-leg self-supporting tower, the footprint limitation of 25 square meters is applied individually to each leg foundation unless there is one concrete foundation for all the legs. You will note that there is no adding of individual footprint elements as you may be suggesting in your questions”

“Footprint” as defined by the Canadian Environmental Assessment Act

The Canadian Environmental Assessment Act defines footprint as follows: “footprint” means the area of land occupied by a building or other structure at ground level.

There is no reference in the Canadian Environmental Assessment Act or in the Exclusion List Regulations to the term “footprint elements” that is being used in Industry Canada’s interpretation of the Act. Nor is there any indication that a single project can have multiple footprints.

Industry Canada’s, “Footprint Interpretation”
One project - multiple footprints

Industry Canada’s interpretation of “footprint” is that a project can have more than one footprint. In their “Footprint Interpretation FAQ” (Attachment 3)* Industry Canada states “Note that in all cases, the 25m2 limit is applied to each individual footprint and this limit is not based on a total sum of the individual footprints.”

In the technical drawings of the proposed installation referred to by the Industry Minister in his response (Attachment 1 and 2)* one can see that “the area of land occupied by a building or other structure at ground level” would be the area of land that is fenced. The fence encompasses: the 82-metre tower, the three foundation pads, the equipment building and the concrete pad for the generator. The fence defines the area of land required by the proposed project. The fence is an integral part of the proposed project and, the fence itself is occupying land at ground level.

Refering to the “Footprint” Interpretation FAQ (Frequently Asked Questions) that was revised by Industry Canada in February 2011 (Attachment 3)* there are a number of points of interpretation in the FAQ that come into question.

In the FAQ Industry Canada states: “Note that in all cases, the 25m2 limit is applied to each individual footprint and that this limit is not based on a total sum of the individual footprints.” How can a single project have more than one footprint? Even if a project could have more than one footprint, why would these “individual footprints” not be added up for a total sum of the project’s footprint?

Also in the FAQ Industry Canada states: “In the case of a self-supporting monopole used to support an antenna, there are no guy-wires, so only the foundation area of the monopole at ground level is considered and its footprint would need to be less than 25 m2 in order to be excluded. Further, in order for a multi-leg self-supporting tower to be considered for exclusion, each tower leg foundation area at ground level must not exceed 25 m2.” When determining that a project is excluded from an environmental assessment under the Canadian Environmental Assessment Act, why would the Industry Canada only measure the land occupied by each tower leg foundation? Why wouldn’t the department measure all the land occupied by the project?

Submission to Commission de protection du territoire agricole du Quebec

As a matter of fact in a formal presentation to another government agency, the Commission de protection du territoire agricole du Quebec (CPTAQ), the proponent defines “required land” for the proposed 82-metre tower as having an area of 420 square metres. When determining a project’s exclusion from an environmental assessment under a federal act of Parliament, the project is determined to have many footprints each of which is less than 25 square metres. However, when making a case for a zoning change in front of a provincial agency, the proponent presented a formal Land Survey that defines the area of land required as 420 square meters. (Attachment 4 - Land Survey)*

The Land Survey submitted by the proponent to the Commission de protection du territoire agricole du Quebec indicates that the fence defines “the area of land occupied by a building or other structure at ground level” in other words, the fence defines the “footprint” as prescribed by the Canadian Environmental Assessment Act - Exclusion List Regulations.

One could also consider the land occupied by the access road as part of the footprint for the proposed project. The project could not be constructed and would not be functional without the access road. The Land Survey (Attachments 4 and 5)* indicates that the area of land occupied by the access road is 4,526 m2.

Why would Industry Canada not measure the footprint in the same way the proponent did in presenting the same project to the CPTAQ? In front of the CPTAQ the proponent identified the land area required for the project, i.e. the “footprint”, as 420 m2.

Industry Minister’s referral to Proponent

In response to environmental petition 301-B regarding the question “What is the size of the “footprint” for the 82-metre tower proposed for installation in Pontiac, Quebec?, the Industry Minister stated that Industry Canada officials have confirmed that the proposed footprint would meet the exclusion requirements, but did not provide the size of the footprint. In that context, in his response, the Industry Minister also recommended the following: “I suggest that you contact (the proponent) should you have specific question on the proposed installation.

It is important to note that the proponent has been contacted and asked the same question: What is the size of the footprint? I wrote the proponent a letter on October 1, 2010 in accordance with Industry Canada’s “Client Procedures” (CPC-2-0-03). The procedures require that the proponent “address in writing all reasonable and relevant concerns within 60 days of receipt”. (N.B. bold emphasis is in Industry Canada procedures.) On January 13, 2011, more than 100 days from receipt of my letter, the proponent provided the following answer regarding the size of the footprint for the proposed project: “As provided by the applicable law, each of the antenna, its supporting structure, or any of its supporting lines has a footprint of no more than 25m2.” (Attachment 6)* Like the Industry Minister’s response the proponent does not answer the question either.

“Vast majority” of Projects Excluded from Environmental Assessment

In environmental petition 301-B, the Industry Minister was asked: “How many communications towers of the type and size proposed in Pontiac, Quebec have been proposed for construction over the past 5 years and how many of these towers were determined to be excluded from an environmental assessment under the Canadian Environmental Assessment Act?”

The Minister of Industry replied to the question, in part, as follows: “Industry Canada does not maintain a database of antenna system projects that are excluded from environmental assessment and experience has shown the vast majority are excluded.”

Not tracking projects Excluded from Environmental Assessment

The Industry Minister’s response continued: “The Canadian Environmental Assessment Agency maintains a database, which is accessible on their website, of environmental assessments undertaken including those carried out on radio communication antenna systems, but it also does not include projects that were excluded from assessment.”

In environmental petition 301-B the Environment Minister was asked: “As the Minister responsible for the Canadian Environmental Assessment Act, does the Minister of the Environment think that a database of projects excluded from environmental assessments under the act should be maintained? If not, why would it not be in the public interest to maintain a database on projects excluded from environmental assessments?”

The Environment Minister replied to the question in part, as follows: “For projects that are excluded from environmental assessment in accordance with section 7 of the Act, despite there being no legislative requirement to do so, the Agency typically advises federal authorities to document the decision. This ensures due diligence on the part of federal authorities and contributes to the quality assurance of their environmental assessment processes.”

According to the Industry Minister, Industry Canada, as the federal authority, is not documenting the department’s decision to, in the Minister’s words, exclude “the vast majority” of radio-telecommunication projects from environmental assessments. This practice does not reflect due diligence or quality assurance. Nor does the practice enable the public’s right to know. This is particularly worrisome when there are concerns about how the industry department is interpreting the Canadian Environmental Assessment Act in determining that projects are excluded from environmental assessments.

The Environment Minister’s response continued: I do not see a need for the Agency to create and maintain a database of excluded projects. There is no legislative authority in the Act that allows me or the Agency to request records from federal authorities pertaining to proposed projects that are not subject to the Act (i.e. projects excluded from environmental assessments.) The creation of such a central database would engender significant costs, time and administrative challenges that would not serve the public interest.”

One would think that enabling due diligence, quality assurance and the right to know would serve the public interest. Further one would wonder how, in the Environment Minister’s words, a central database would “engender significant costs, time and administrative challenges.”

In his answer to environmental petition 301-B the Environment Minister states: “The Agency maintains the Canadian Environmental Assessment Registry internet site. The site contains certain electronic records of all federal environmental assessments conducted in accordance with the Act which is approximately 6000 per year.” So, the database already exists. For projects that are excluded from environmental assessment under the Canadian Environmental Assessment Act all that would be required is the addition of a section to the registry to which federal authorities could add: the name and location of the project and a paragraph stating how it was determined that the project is excluded from environmental assessment. See example of a project page in the registry:
http://www.ceaa-acee.gc.ca/050/details-eng.cfm?evaluation=59435

It is difficult to imagine that adding projects that are excluded from environmental assessments would “engender significant costs, time and administrative challenges.” A minimum of information would be required and, the number of projects excluded from environmental assessments would not necessarily be significant. If, for example, 10% of proposed projects are excluded from environmental assessments this would equate to 600 projects per year or two to three short entries each day.

Opportunity to use new and innovative technology.

The proponent is aware that there is leading-edge technology available that promises to make cell towers obsolete. Below are excerpts from an Alcatel-Lucent press release that outlines both the economic and environmental benefits of this new and innovative technology. See the complete press release, Alcatel-Lucent Maps the Future of Mobile Technology at:
http://uscdn.creamermedia.co.za/assets/articles/attachments/31599_alcatel.pdf

“PARIS and LONDON, February 7, 2011 - Alcatel-Lucent today announced lightRadioTM, a breakthrough in mobile and broadband infrastructure that streamlines and radically simplifies mobile networks. The solution was unveiled at a major press launch in London supported by partners Freescale and HP.

Pioneered by Bell Labs, Alcatel-Lucent’s unique research and development arm, the new lightRadio system will dramatically reduce technical complexity and contain power consumption and other operating costs in the face of sharp traffic growth. This is accomplished by taking today’s base stations and massive cell site towers, typically the most expensive, power hungry, and difficult to maintain elements in the network, and radically shrinking and simplifying them.

lightRadio represents a new architecture where the base station, typically located at the base of each cell site tower, is broken into its components elements and then distributed into both the antenna and throughout a cloud-like network. Additionally today’s clutter of antennas serving 2G, 3G, and LTE systems are combined and shrunk into a single powerful, Bell Labs- pioneered multi frequency, multi standard Wideband Active Array Antenna that can be mounted on poles, sides of buildings or anywhere else there is power and a broadband connection.

Alcatel-Lucent’s new lightRadio product family, of which initial elements ready to begin customer trials in the second half 2011, provides the following benefits:
•     Improves the environment: lightRadio reduces energy consumption of mobile networks by up to 50% over current radio access network equipment. (As a point of reference, Bell Labs research estimates that base stations globally emit roughly 18,000,000 metric tons of CO2 per year). Also, lightRadio provides an alternative to today’s jungle of large overcrowded cell site towers by enabling small antennas anywhere.

•     Addresses digital divide: By reducing the cell site to just the antenna and leveraging future advances in microwave backhaul and compression techniques, this technology will eventually enable the easy creation of broadband coverage virtually anywhere there is power (electricity, sun, wind) by using microwave to connect back to the network.

•     Offers major savings for operators: Thanks to lightRadio’s impact on site, energy, operations and maintenance costs; when combined with small cells and LTE, this new solution can lead to a reduction of total cost of ownership (TCO) of mobile networks up to 50% (as a point of reference, Bell Labs estimates that TCO spent by mobile operators in mobile access in 2010 was 150 billion Euros).”

In a February 11, 2011 article entitled: “Wireless advances could mean no more cell towers” Mr. Wim Sweldens, president of the wireless division of Alcatel-Lucent said the following: “We see more and more towers that become bigger and bigger, with more and bigger antennas that come to obstruct our view and clutter our landscape and are simply ugly. What we have realized is that we, as one of the major mobile equipment vendors are partially if not mostly to blame for this.” The LightRadio cube Mr. Sweldens said can make the notion of a conventional cell tower “go away”.

The Local Land Use Authority and those in the community where an 82-metre tower is being imposed would be supportive of using this new technology. Rather than being the last municipality to receive old, inefficient and soon to be obsolete technology, this community would prefer to be among the first municipalities to access the new and innovative technology.

Questions for the Industry Minister:

As the question regarding the size of the footprint for the proposed tower has not been answered either by the Minister or the proponent it is being asked again.

1. What is the size of the “footprint”, in square metres, for the 82-metre communications tower proposed for installation in Pontiac, Quebec?

Industry Canada’s “Footprint Interpretation” refers to “footprint elements” and “Individual footprints”.

2. Would the Industry Minister explain how a single project can have more than one footprint?

Industry Canada’s “Footprint Interpretation” states: “Note that in all cases, the 25m2 limit is applied to each individual footprint and this limit is not based on a total sum of the individual footprints.”

3. Even if a project could have more than one “individual” footprint, would the Minister explain why these “individual footprints” are not added together for a total sum of the project’s footprint?

Industry Canada’s “Footprint Interpretation” states, “Further, in order for a multi-leg self-supporting tower to be considered for exclusion, each tower leg foundation area at ground level must not exceed 25 m2.”

4. When determining that a project is excluded from an environmental assessment under the Canadian Environmental Assessment Act, why would Industry Canada only measure the land occupied by each tower leg foundation independently of the others and not all the land occupied by the project?

In this environmental petition there is reference to a formal presentation the proponent of the project made to a provincial government agency, the Commission de protection du territoire agricole du Quebec (CPTAQ). The official Land Survey presented by the proponent to the CPTAQ defines “required land” for the proposed 82-metre tower as having an area of 420 square metres.

5. What would the Minister say is the difference between the estimated “required land” presented by the project proponent to the CPTAQ and, “footprint” as defined by the Canadian Environmental Assessment Act i.e. “the area of land occupied by a building or other structure at ground level.”?

Also attached are the proponent’s technical drawings* which the Industry Minister refers to in one of his answers to environmental petition 301-B wherein he states: “Based on the technical drawings of the proposed installation provided by the proponent, Industry Canada officials have confirmed that the proposed footprint would meet the exclusion requirements.”

6. Can the Minister look at the technical drawings himself to determine if measuring three concrete pads independently of one another is a legitimate way to measure the “footprint” for this project?
7. Why wouldn’t the entire area within the fence, or the fence itself be considered the “footprint” for the proposed project?
8. As a responsible “federal authority” for implementing the Canadian Environmental Assessment Act would the Industry Minister explain how Industry Canada’s “footprint interpretation” reflects what Parliament intended when it defined “footprint” in the Exclusion List Regulations?
9. Can the Industry Minister provide assurance to the citizens of the Municipality of Pontiac that the installation of the proposed project will not proceed until the questions concerning the interpretation of the Canadian Environmental Assessment Act and the Exclusion List Regulations are resolved?

Questions for the Environment Minister:

As illustrated in the attached technical drawings* one can see that an 82-metre high tower, with a height equivalent to a 25-storey building, occupies a substantial area of land. For this particular installation the estimated size of the area of land occupied, or the “footprint”, ranges from less than 25m2 (Industry Canada) to more than 400m2 (the proponent). The requirement for the project to undergo an environmental assessment is dependent upon which estimate is considered the “footprint”.

The Canadian Environmental Assessment Act - Exclusion List Regulations, state that an installation can be excluded from an environmental assessment ...
If the antenna, its supporting structure, or any of its supporting lines has a footprint of no more than 25m2.

Looking at the technical drawings one can see that the “area of land occupied by the structure at ground level” is far in excess of 25m2. At an absolute minimum the government could accept the three foundation pads that are each 9m2 and add them together for a total of 27m2. However, that approach does not appear to reflect what is likely the intent of the Canadian Environmental Assessment Act i.e. the area of land occupied. As middle ground the government could identify the area on which the supporting structure (tour autoportante) would stand. That would be far in excess of 25m2. Finally, the government could identify all the land that the proposed project would occupy at ground level. Occupied meaning the area of land required by the project. The proponent formerly identified the amount of “required land” for this project as 420 square metres.

1. Does the Environment Minister agree with Industry Canada’s “Footprint interpretation”: that a single project can have more than one “footprint” and that these “individual footprints” and “footprint elements” do not have to be added together to form one “footprint” for one project, as published in the Industry Department’s Frequently Asked Questions?
2. In defining “footprint” under the Canadian Environmental Assessment Act, Exclusion List Regulations can the Environment Minister explain if it was Parliament’s intention that a single project can have several footprints and what that rationale was based on?
3. Would the Minister of the Environment explain how a project which occupies an area exceeding 400m2, i.e. the area within the fence, can be excluded from an environmental assessment under the Canadian Environmental Assessment Act Exclusion List Regulations?

With regard to questions about tracking the number of projects that are excluded from environmental assessments, in your response to environmental petition 301-B you stated “For projects that are excluded from environmental assessment in accordance with section 7 of the Act, despite there being no legislative requirement to do so, the Agency typically advises federal authorities to document the decision. This ensures due diligence on the part of federal authorities and contributes to the quality assurance of their environmental assessment processes.”

Industry Canada makes it clear that the “vast majority” of telecommunications projects are excluded from environmental assessment and that the industry department does not maintain a database of projects that are excluded from environmental assessment.

4. As Canada’s Environment Minister do you think that not keeping track of projects excluded from environmental assessments has an impact on due diligence and the quality assurance of Industry Canada’s environmental assessment process?

Further, in your response to environmental petition 301-B you stated: “I do not see a need for the Agency to create and maintain a database of excluded projects. There is no legislative authority in the Act that allows me or the Agency to request records from federal authorities pertaining to proposed projects that are not subject to the Act (i.e. projects excluded from environmental assessments.) The creation of such a central database would engender significant costs, time and administrative challenges that would not serve the public interest.”

5. Can the Environment Minister explain how using an existing database to report projects excluded from environmental assessment, thus enabling due diligence, quality assurance of the environmental assessment process and, the public’s right to know, would not serve the public interest?

In an answer to environmental petition 301-B the Environment Minister states: “The Agency maintains the Canadian Environmental Assessment Registry internet site. The site contains certain electronic records of all federal environmental assessments conducted in accordance with the Act which is approximately 6000 per year.”

The database already exists. For projects that are excluded from environmental assessment under the Canadian Environmental Assessment Act all that would be required is the addition of a section to the registry to which federal authorities could add: the name and location of the project and a paragraph stating how it was determined that the project is excluded from environmental assessment.

It is difficult to imagine that adding projects that are excluded from environmental assessments would “engender significant costs, time and administrative challenges.” A minimum of information could be required and, the number of projects excluded from environmental assessments would not necessarily be significant. If, for example, 10% of proposed projects are excluded from environmental assessments this would equate to 600 projects per year or two to three short entries per day spread across several federal departments.

6. Can the Environment Minister explain how a central database would, in the minister’s words “engender significant costs, time and administrative challenges.”
7. In light of the advantages that would result, i.e. due diligence, quality assurance and the public’s right to know, would the Minister reconsider his position and encourage other federal departments, as responsible authorities, to include projects that are excluded from environmental assessments in the existing Canadian Environmental Assessment Registry?

Questions for both the Industry Minister and the Environment Minister

As described at the end of the environmental petition, Alcatel-Lucent has developed a new and innovative technology that will ultimately render large communication towers obsolete. In addition, the new lightRadio technology has both environmental and economic benefits which should be welcome in Canada.

An excerpt from a second press release: Disappearing Masts and Towers

“Ben Verwaayen, Chief Executive Officer of Alcatel-Lucent, said: “Today’s and tomorrow’s demands for coverage and capacity require a breakthrough in mobile communications.” He added: “lightRadio will signal the end of the base station and the cell tower as we know it today.”

Governments and regulatory bodies are expected to welcome the technical development, which will help meet targets for universal broadband access by laying the foundation to address the so-called “digital divide.”

Other major benefits from lightRadio™ include:

• Shrinking the carbon footprint of mobile networks by over 50%
• Reducing the Total-Cost-of-Ownership of mobile operators by up to 50%
• Improving end user services by significantly increasing bandwidth per user thanks to the deployment of small antennas

Wim Sweldens, President of Alcatel-Lucent’s Wireless Division said: “lightRadio will help mobile operators evolve their networks to address the mobile broadband deluge.”

1. Are the Industry department and the Environment department aware of this new and innovative technology and the environmental and economic benefits the lightRadio technology could bring to Canada?

   For example: the new Alcatel-Lucent technology can:

   • “lead to a reduction of total cost of ownership (TCO) of mobile networks up to 50%”
   • reduces energy consumption of mobile networks by up to 50% over current radio access network equipment”.

   “As a point of reference, Bell Labs research estimates that base stations globally emit roughly 18,000,000 metric tons of CO2 per year.”

2. Considering the rapid growth in the number of antennas and telecommunication towers across Canada, would the Ministers of Industry and Environment seize the opportunity to encourage Canadian companies to engage with Alcatel-Lucent to pursue applications of this new technology in Canada?
3. Would the Ministers of Environment and Industry see the benefit of directing your respective departments to explore and document the environmental and economic benefits that Canada can accrue by adopting this new technology?

Attachments:

*[attachments not posted]

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Minister's Response: Environment Canada

7 October 2011

Mr. James Riordan
170 Braun Road
Luskville QC J0X 2G0

Dear Mr. Riordan:

I am writing in response to your follow-up Environmental Petition No. 301-C, pursuant to section 22 of the Auditor General Act, regarding the exclusion from an environmental assessment under the Canadian Environmental Assessment Act of a proposed communications tower in the Breckenridge sector of Pontiac, Quebec. Your petition was received in Environment Canada on July 13.

Enclosed you will find Environment Canada’s response to your petition. I understand that the Minister of Industry, the Honourable Christian Paradis, will be responding separately to questions that fall under his mandate.

I appreciate this opportunity to respond to your petition, and trust that you will find this information helpful.

Sincerely,

[Original signed by Peter Kent, Minister of the Environment]

The Honourable Peter Kent, P.C., M.P.

Enclosure

c.c.: The Honourable Christian Paradis, P.C., M.P.
Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development

Environment Canada’s Response to Environmental Petition no. 301‑C, concerning a proposed communications tower in the Breckenridge sector of Pontiac, Quebec

Questions for the Environment Minister:

Question 1: Does the Environment Minister agree with Industry Canada’s “Footprint interpretation”: that a single project can have more than one “footprint” and that these “individual footprints” and “footprint elements” do not have to be added together to form one “footprint” for one project, as published in the Industry Department’s Frequently Asked Questions?

Question 2: In defining “footprint” under the Canadian Environmental Assessment Act, Exclusion List Regulations can the Environment Minister explain if it was Parliament’s intention that a single project can have several footprints and what that rationale was based on?

Question 3: Would the Minister of the Environment explain how a project which occupies an area exceeding 400m2, i.e. the area within the fence, can be excluded from an environmental assessment under the CanadianEnvironmental Assessment Act Exclusion List Regulations?

Answer to questions 1 to 3: The Canadian Environmental Assessment Act provides authority under paragraph 59(c)(ii) to the Governor in Council to make regulations exempting certain projects from the Act, if, in the case of projects in relation to physical works, the Governor in Council is of the opinion that they have insignificant environmental effects.

In 2007, the Governor in Council, under the authority of paragraph 59(c)(ii) of the Act, amended the Exclusion List Regulations byadding 22 new exclusions, including the one in relation to radiocommunication antennas and the definition of “footprint.”

The exclusion applied by Industry Canada to the proposed project to construct a radiocommunication antenna in the municipality of Pontiac is as follows:

The key to applying the exclusion is not the definition of “footprint,” but rather the following part of the exclusion: “the antenna, its supporting structure or any of its supporting lines has a footprint of no more than 25m².”

Industry Canada indicated in its response to petition 301-B that its exclusion is based on the footprint of each separate component of a multi-leg self-supporting tower, such that if each base has a footprint of 25m² or less, the footprint threshold for the exclusion has been met. This is the correct application of the exclusion, and I therefore concur with Industry Canada’s interpretation.

Question 4: As Canada’s Environment Minister do you think that not keeping track of projects excluded from environmental assessments has an impact on due diligence and the quality assurance of Industry Canada’s environmental assessment process?

Question 5: Can the Environment Minister explain how using an existing database to report projects excluded from environmental assessment, thus enabling due diligence, quality assurance of the environmental assessment process and, the public’s right to know, would not serve the public interest?

Question 6: Can the Environment Minister explain how a central database would, in the minister’s words “engender significant costs, time and administrative challenges?”

Question 7: In light of the advantages that would result, i.e. due diligence, quality assurance and the public’s right to know, would the Minister reconsider his position and encourage other federal departments, as responsible authorities, to include projects that are excluded from environmental assessments in the existing Canadian Environmental Assessment Registry?

Answer to questions 4 to 7: As indicated in our response to petition 301-B, there is no legislative requirement for a federal authority to document decisions related to the exclusion of projects from federal environmental assessments (EAs). However, documenting these decisions would ensure due diligence and contribute to the quality assurance of EAs. Thus the Agency typically advises all federal authorities to document their decisions for this purpose.

The Canadian Environmental Assessment Registry was created to facilitate public access to information on EAs actually conducted, and not on projects that were excluded from the application of the Act. The database application is therefore based around the requirements of the Act, e.g. the types of records that are required to be included on the Registry, such as notices of commencement, notices regarding opportunities for public participation and EA reports.

The Registry database application does not currently have the functionality to include documentation regarding projects that were excluded from the Act. Modifying the database would engender significant costs and time to accommodate excluded projects. The value of such a change is questionable, especially when there is no legislative requirement for federal authorities to document these decisions, and the Agency would not have the authority to require federal authorities to input this information into the Registry.

The Standing Committee on Environment and Sustainable Development is expected to begin its review of the provisions and operation of the Act this fall. You may wish to bring your specific concerns regarding this matter to the Committee’s attention at that time.

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Minister's Response: Industry Canada

9 November 2011

Mr. James Riordan
170 Braun Road
Luskville, Quebec J0X 2G0

Dear Mr. Riordan:

I am writing to you further to your follow-up questions to my responses to Environmental Petitions 301 and 301-B. These subsequent questions, Environmental Petition 301-C, were received June 30, 2011, by the Office of the Auditor General and forwarded to me by the Commissioner of the Environment and Sustainable Development.

Experience has shown that the vast majority of radiocommunication antenna systems are excluded from environmental assessment under regulations made by the Governor in Council further to the CEAA and so are deemed to have no significant effects on the environment. What follows are the responses to your questions.

Question 1: What is the size of the “footprint,” in square metres, for the 82-metre communications tower proposed for installation in Pontiac, Quebec?

Question 2: Would the Industry Minister explain how a single project can have more than one footprint?

Question 3: Even if a project could have more than one “individual” footprint, would the Minister explain why these Aindividual footprints” are not added together for a total sum of the project’s footprint?

Question 4: When determining that a project is excluded from an environmental assessment under the Canadian Environmental Assessment Act, why would Industry Canada only measure the land occupied by each tower leg foundation independently of the others and not all the land occupied by the project?

Question 5: What would the Minister say is the difference between the estimated Arequired land” presented by the project proponent to the CPTAQ and, “footprint” as defined by the Canadian Environmental Assessment Act i.e. Athe area of land occupied by a building or other structure at ground level.”?

Question 6: Can the Minister look at the technical drawings himself to determine if measuring three concrete pads independently of one another is a legitimate way to measure the “footprint” for this project?

Question 7: Why wouldn’t the entire area within the fence, or the fence itself be considered the Afootprint” of the proposed project?

Question 8: As a responsible Afederal authority” for implementing the Canadian Environmental Assessment Act would the Industry Minister explain how Industry Canada’s “ footprint interpretation” reflects what Parliament intended when it defined “footprint” in the Exclusion List Regulations?

In my predecessor’s response to your previous Environmental Petition, No. 301-B, you were provided with Industry Canada’s interpretation of “footprint” for antennas, their supporting structures or any supporting lines.

Question 9: Can the Industry Minister provide assurance to the citizens of the Municipality of Pontiac that the installation of the proposed project will not proceed until the questions concerning the interpretation of the Canadian Environmental Assessment Act and the Exclusion List Regulations are resolved?

The Minister shall exercise the assigned powers, duties and functions in a manner that will strengthen the national economy and promote sustainable development. Industry Canada has procedures in place that require that antenna systems be deployed in a manner that considers, among other things, the Canadian Environmental Assessment Act and the Exclusion List Regulations.

Question 1A: Are the Industry department and the Environment department aware of this new and innovative technology and the environmental and economic benefits the lightRadio technology could bring to Canada?

Question 2A: Considering the rapid growth in the number of antennas and telecommunication towers across Canada, would the Ministers of Industry and Environment seize the opportunity to encourage Canadian companies to engage with Alcatel-Lucent to pursue applications of this new technology in Canada?

Question 3A: Would the Ministers of Environment and Industry see the benefit of directing your respective departments to explore and document the environmental and economic benefits that Canada can accrue by adopting this new technology?

I would like to thank you for the information on lightRadio^TM as this appears to be an interesting new technological development by the industry. Should this technology have merit it will be adopted by industry. As a matter of policy, the Department remains neutral regarding new technologies and leaves their success, or failure, to the marketplace.

I encourage you to contact my local Industry Canada officials directly should you have additional questions relating to operational matters.

Yours sincerely,

[Original signed by Christian Paradis, Minister of Industry and Minister of State (Agriculture)]

The Honourable Christian Paradis, P.C., M.P.

c.c. Commissioner of the Environment and Sustainable Development