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Alleged misinterpretation of exclusion list conditions under the Canadian Environmental Assessment Act related to the construction of a communications tower in Pontiac, Quebec

Petition: 301

Issue(s): Biological diversity, compliance and enforcement, environmental assessment, and human/environmental health

Petitioner(s): James Riordan

Date Received: 30 June 2010

Status: Completed

Summary: The petitioner is concerned about the construction of a communications tower in Pontiac, Quebec. The petitioner claims the tower has been excluded from an environmental assessment due to a misinterpretation of exclusion list conditions under the Canadian Environmental Assessment Act. The petitioner notes the proximity of the site to a nature reserve and its potential impact on migratory birds and on the stability of the soil. He asks the federal departments whether they will reconsider the exclusion decision. The petitioner asks the Minister of the Environment to clarify the exclusion list conditions under the Act. He also raises concerns about the potential health impacts caused by exposure to electromagnetic radiation.

Federal Departments Responsible for Reply: Environment Canada, Health Canada, Industry Canada

Petition

June 21, 2010

Office of the Auditor General of Canada
Commissioner of the Environment and Sustainable Development
Attention: Environmental Petitions
240 Sparks Street
Ottawa, Ontario K1A 0G6

Commissioner Scott Vaughan:

This petition is being submitted in accordance with section 22 of the Auditor General Act. Responses by the departments of Environment, Industry and Health are requested.

[Original signed by James Riordan]

James Riordan
170 Braun Road
Luskville, Pontiac, Quebec J0X 2G0

Title: Exclusion from an Environmental Assessment under the Canadian Environmental Assessment Act

This petition raises concern about the interpretation of an Act of Parliament by the proponent of the construction of an 82-meter high communications tower. The result of the proponent’s interpretation, which was accepted by Industry Canada, is that the project is excluded from an environmental assessment under the Canadian Environmental Assessment Act.

This is a time sensitive petition as the proponent is attempting to build the communications tower quickly and with as little public input as possible. A copy of a technical drawing which illustrates the height of the tower and some of its intended uses, both current and future, is attached as Attachment #1.

This 82-meter high communications tower is proposed for construction in the Breckenridge sector of Pontiac, Quebec. Breckenridge is approximately ten kilometers west of Aylmer, Quebec. The proposed site for the tower:

  • is within a residential area,
  • shares a property line with the Breckenridge Creek Nature Preserve
  • is on land identified as being Leda clay and subject to landslides and,
  • at an equivalent to the height of a 25 storey building, the tower would be ten times higher than anything else for miles around.

More than ninety percent of the local residents have signed a petition opposing the construction of the 82-meter high communications tower for environmental reasons and, many have health concerns related to the ongoing operation of this type of commercial/industrial facility in a residential area.

The proponent has submitted a letter to the Municipality of Pontiac stating that the project is excluded from an environmental assessment under the Canadian Environmental Assessment Act. The letter is attached as Attachment #2. An electronic address for this letter is also provided in References.

Canadian Environmental Assessment Act

The Canadian Environmental Assessment Act has an annex entitled Exclusion List Regulations (2007). The annex provides a number of factors that can be used in determining if a project can be excluded from an environmental assessment under the Act. The Exclusion List Regulations describe the conditions under which proponents can be excluded from completing an environmental assessment. The exclusion list website is: http://www.canlii.org/en/ca/laws/regu/sor-2007-108/latest/sor-2007-108.html Section 20 is the most applicable section of the Exclusion List Regulations and is attached as Attachment #3.

Section 20 (1)(a)(ii) of the Exclusion List Regulations states that “the proposed construction, installation, operation, expansion or modification of a radio communication antenna and its supporting structure (can be excluded) if the antenna, its supporting structure, or any of its supporting lines has a footprint of no more than 25 m2.”

Technical drawings for the 82-meter antenna proposed for construction in the Breckenridge sector of Pontiac, Quebec show that the footprint for this installation would be more than 10 times larger than 25 square meters. See Attachment #4. This suggests that the proposed installation should not be excluded from an environmental assessment under the Act.

However, there is another factor, which the proponent may be using. Section 20 (1)(a)(i) of the Exclusion List Regulations states that ”the proposed construction … of a radio communication antenna ,,(can be excluded) if the antenna and supporting structure are either affixed to a building or located entirely within 15 m of a building.

This is the critical question for the Minister of the Environment. When including factor (20 (1)(a)(i) in the Exemption List Regulations was the intention of Parliament that the building be an ‘existing’ building?

What the proponent is planning in this case is the construction of a 10ftX10ft “building” then constructing the 82-meter high communications tower exactly 15 meters from the newly constructed “building”. A copy of a technical drawing of the 10ftX10ft “building” is attached as Attachment #5. With this plan, it appears that the legislation is being interpreted by the proponent as providing the building and the 82 meter high structure with an exclusion from an environmental assessment under the Act. This may be a loop-hole in the legislation.

This interpretation of the Canadian Environmental Assessment Act is being made by the proponent of the project, in concert with Industry Canada. Neither the Minister of the Environment, as the Minister responsible for the Act, nor the Canadian Environmental Assessment Agency, whose role is “to provide Canadians with high-quality environmental assessments that contribute to informed decision making, in support of sustainable development”, have been consulted in determining the project’s exclusion from an environmental assessment.

It appears that the Canadian Environmental Assessment Act requires a responsible authority to trigger the legislation. With telecommunications antennae, the responsible authority is Industry Canada. Industry Canada has a policy document Radio communication and Broadcasting Antenna Systems (CPC-2-0-03), which provides guidance to proponents. This can be found at Industry Canada’s website at http://www.ic.gc.ca/eic/site/smt-gst.nsf/eng/sf08777.html

Section 7.4 of Industry Canada’s policy document entitled Canadian Environmental Assessment Act is attached as Attachment #6. Section 7.4 instructs proponents to self identify if they should have an environmental assessment and if they do, Industry Canada has the authority to accept the self-identification. In this case, the proponent determined that their project does not require an environmental assessment under the Act. The exclusion has been accepted by Industry Canada.

Industry Canada may have conflicting interests here as their mandate is two-fold: “to facilitate an open and transparent process with respect to antenna tower citing while ensuring the continued development of radio communication and broadcasting.”

Health Canada’s Safety Code 6 - Limits of Exposure to Radio Frequency Fields

The proposed site for the 82-meter high communications tower is within a residential area and could cause human health effects. Those living in the area are concerned about exposure to radio frequency electromagnetic fields and the risk of cancer that may accompany the ongoing and expanding operations of the proposed tower. The proponent has plans for continuously adding capacity to the structure. Families are concerned about the health of their children who may be especially vulnerable to radio frequency electromagnetic fields emitted from a telecommunications tower of this magnitude. Homeowners are aware of dire warning signs about dangers to human health that are posted around similar installations particularly the one near Camp Fortune where local people ski. Neighbours want to know what the levels of exposure to radio frequency electromagnetic fields will be at ground level and, more importantly, what the levels of exposure to radio frequency fields will be at homes located near the proposed site for the antenna.

The proponent has also determined that it is exempt from any scientific studies, health assessment or public reporting and has recently provided a short letter of assurance to that effect. See Attachment #7. In the letter the proponent “certifies that, in the interest of public safety, the proposed facilities will be built and operated at all times in accordance with Health Canada’s Safety Code 6 and any future amendments, including the consideration of combined effects within the local radio environment.” One must wonder how a proponent can provide written assurance that a facility will be operated in accordance with any future amendments to Health Canada’s Safety Code 6, especially when the proponent would not know what the future amendments will be. One would also wonder what analysis was undertaken to demonstrate that the project would meet both current and future requirements of Health Canada’s Limits of Exposure to Radio Frequency Fields and how the public can gain access to the analysis.

It is understood that if an environmental assessment were to be required under the Canadian Environmental Assessment Act it would not address human health concerns. Nevertheless, this information is being provided as context, for the Ministers of Environment and Industry, to show that it is not only an environmental assessment that the proponent has exempted this project from. The information is also provided for the Minister of Health to address human health questions associated with the proposed project.

Breckenridge Creek Nature Preserve

The site proposed for this 82-meter communications tower shares a property line with the Breckenridge Creek Nature Preserve. This is a unique 440 acre parcel of land that was donated to Nature Conservancy Canada in 2003 in accordance with Environment Canada’s Ecological Gifts Program. “The property’s varied features provide habitats for a great diversity of animals and plants, some of which like the Western Chorus Frog and the Wild Leek, are vulnerable in Quebec…” Attachment #8 is a brochure prepared by Environment Canada entitled “An Ancestral Land and its Natural Pastures Preserved in Perpetuity”. An electronic address is also provided in References.

One of the programs instituted on the Breckenridge Creek Nature Preserve is the re-introduction of the Eastern Loggerhead Shrike an endangered species in Canada that is native to this area of Quebec. This bird recovery program is supported, in part, by Environment Canada’s Canadian Wildlife Service in conjunction with the Province of Quebec Society for the Protection of Birds.

Scientific studies demonstrate the impact of this type of communications tower on migratory birds. The height of the tower requires that it be lit to warn aircraft. It is proven that the lights disorient migratory birds causing the birds to fly into the towers and die. Attached is one recent study entitled Communication towers, lights and birds: successful methods of reducing the frequency of avian collisions. See Attachment 9. An electronic link is also provided in References.

It is anticipated that the proposed tower would have a direct impact on the recovery program for the Loggerhead Shrike as well as on other birds and wildlife on the preserve. It is difficult to determine how severe the impact will be as the proponent has determined that their project is excluded from an environmental assessment under the Canadian Environmental Assessment Act.

The construction of an 82-meter communications tower immediately adjacent to the Breckenridge Creek Nature Preserve is the antithesis of what the late Diane Aldred intended when she decided to leave a precious legacy to future generations. “I could not live with the knowledge of the wholesale destruction that would follow in the wake of a bulldozer.” she once wrote. This unique natural heritage forms part of "the Gateway to the Pontiac". The preserve is something that the citizens of the Pontiac are proud of and, believe it should continue to be protected and “preserved in perpetuity”.

What becomes clear here is that we have one federal department (Industry) interpreting another’s legislation (Environment) concluding that an environmental assessment is not required, while the former (Industry) authorizes the erection of an 82-meter communications tower which kills migratory birds whose re-introduction is being supported, in part, by the other department (Environment).

Leda Clay – “It is impossible for geologists to predict where a slide will occur or how large it will be.”

Citizens in the vicinity of the site proposed for the 82-meter communications tower are concerned about building a structure of this magnitude on Leda clay, especially considering recent landslides adjacent to the proposed site. There is heightened concern resultant from the tragedy in Saint Jude, Quebec in May where Leda clay caused a landslide that killed a family of four. The shifting ground created a sinkhole that was one kilometer long and half a kilometer wide.

As can be seen in the attached Globe and Mail article, Laval University has identified the Pontiac as being an area containing "unstable Leda clay deposits". The university states that: "Deposits of unstable Leda clay exist throughout the valleys of the St. Lawrence and Ottawa Rivers. While areas at risk have been mapped, it is impossible for geologists to predict where a slide will occur or how large it will be." The Globe and Mail article "Residents seek reassurance in wake of deadly slide" is attached for your information as Attachment #10. Also attached is an article from the Ottawa Citizen entitled “The bizarre mechanics of a Leda clay landslide” as Attachment #11. Electronic links to both stories are included in References.

In designing the 82-meter communications tower it is not clear if the proponent or Industry Canada considered local soil conditions and the fact that this area of Breckenridge sector, Pontiac, Quebec recently experienced a significant landslide associated with Leda clay.

Petition Questions

For the Minister of the Environment:

1. What was Parliament’s intent in providing for exclusions from environmental assessments under the Canadian Environmental Assessment Act?

2. Section 20 (1)(a)(i) of the Exclusion List Regulations states that the proposed construction … of a radio communication antenna ,,(can be excluded from an environmental assessment ) if the antenna and supporting structure are either affixed to a building or located entirely within 15 m of a building.

Those constructing this radio communication antenna appear to be interpreting the legislation as allowing exclusion from an environmental assessment under the Canadian Environmental Assessment Act if they build a small structure e.g. a 10ft/10ft “building” and then construct the 82 meter high antenna 15 m from the “building”. In reviewing the legislation this appears to be a “loophole”.

This is the critical question. When including factor (20 (1)(a) (i)) in the Exemption List Regulations was the intention of Parliament that the building be an ‘existing’ building? If not, why are there two reference to “a building” in the clause?

3. Can the Minister of the Environment put forward an amendment to the Exclusion List Regulations to improve the environmental legislation designed to ensure that environmental assessments are completed for installations of this type and size? Can the Minister do this by adding the word “existing” in front of the word “building” in section 20 (1)(a)(i) of the Exclusion List Regulations? If not, how can the Minister ensure that this loophole in the legislation is closed?

4. Recognizing that amending legislation and regulations takes time, even if it is only adding one word to provide clarity, would the Minister notify his colleague, the Minister of Industry, that section 20 (1)(a)(i) is intended to mean “existing” building? If not, why would the Environment Minister not be willing to do so?

5. Will the Minister ask the Industry Minister to make it clear to proponents of radio communication antennae that they must cease using their interpretation of the Act to exclude telecommunications projects from environmental assessments? Why would the Minister not be willing to do so?

6. Is there a mechanism, either statutory or non-statutory, for contesting or appealing the self-determination by a proponent that a communication antenna should be excluded from an environmental assessment under the Canadian Environmental Assessment Act? If not, can the Minister explain how Canadians, who see what appears to be the misinterpretation of federal legislation, can contest or appeal exclusions from environmental assessments under the Act?

For the Minister of the Environment and the Minister of Industry

7. Now that the Ministers of Industry and Environment are aware that the proposed site for an 82 meter high antenna would share a property line with the 440 acre Breckenridge Creek Nature Preserve, which was established under Environment Canada’s Ecological Gifts Program to be “preserved in perpetuity”, should an environmental assessment be required under the Act? If not, why would an environmental assessment not be required?

8. Now that Industry Canada and Environment Canada are aware that the proposed site for an 82 meter high antenna will have some impact on an established program to reintroduce an endangered species of migratory bird, should an environmental assessment be required under the Act? If not, why not?

9. The Ministers of Industry and Environment are now are aware that the proposed site for an 82 meter high antenna is identified as being deposits of unstable Leda clay and, according to Laval University, “impossible for geologists to predict where a landslide will occur or how large it would be”. Considering the magnitude of the landslide in Saint-Jude, Quebec in May and the fact that there has been a recent landslide adjacent to the proposed site, should an environmental assessment be required under the Canadian Environmental Assessment Act? If not, why would an assessment not be required?

10. With regard to the proposed project (GA612-03), does Industry Canada know if the above three factors (nature preserve, migratory birds or Leda clay) were considered by the proponent when the proponent determined that it was excluded from an environmental assessment under the Canadian Environmental Assessment Act? If the department was not aware of these factors, how would it amend its policy (CPC-2-0-03) to ensure that Industry Canada would be informed of these types of factors in future proposals?

11. With regard to radio telecommunications antennae, Industry Canada has a two-fold mandate: “to facilitate an open and transparent process with respect to antenna tower citing while ensuring the continued development of radio communication and broadcasting.” Is it appropriate to have the department responsible for tower citing and the continued development of radio communication also responsible for determining if a radiocommuniation project requires an environmental assessment under the Canadian Environmental Assessment Act? Can you elaborate on why it would be considered appropriate?

12. Before Industry Canada accepts a proponent’s conclusion that a project is excluded from and environmental assessment under the Canadian Environmental Assessment Act, should Industry Canada be required to consult with Environment Canada on the rationale for the exclusion? If not, why not?

13. In a letter to Citizens of the Pontiac, the proponent states that it has “acquired 17 operating licenses from Industry Canada” to build a cutting-edge Advanced Wireless Services network. Would the Industry Minister explain if this means that the proponent will be building 17 communications towers and, how many of these are or will be excluded from an environmental assessment under the Canadian Environmental Assessment Act?

14. Can the Industry Minister also provide details on the number of operating licenses the department has issued on an annual basis over the last five years and, the number of these licensed antennas that were excluded from environmental assessments under the Canadian Environmental Assessment Act?

For the Minister of Health

The proposed site for the 82 meter high telecommunications tower is within a residential area and could cause health effects. Those living in the area are concerned about exposure to radio frequency electromagnetic fields and the risk of cancer that may accompany the ongoing and expanding operation of the proposed tower. Families are concerned about the health of their children who may be especially vulnerable to radio frequency electromagnetic fields emitted from a telecommunications tower of this magnitude. Homeowners are aware of dire warning signs about dangers to human health which are posted around similar local installations (e.g. Camp Fortune) and are concerned about the levels of exposure to radio frequency electromagnetic fields at the homes situated near the site proposed for the antenna.

The proponent has recently provided a short letter of assurance which states it: “…hereby certifies that, in the interest of public safety, the proposed facilities will be built and operated at all times in accordance with Health Canada’s Safety Code 6 and any future amendments, including the consideration of combined effects within the local radio environment.”

15. Would the Minister of Health elaborate on how a proponent for a radio communications antenna can provide written assurance that the facility will be operated in accordance with any future amendments to Health Canada’s Safety Code 6?

16. Is Health Canada aware of any analysis that was undertaken to demonstrate that the project would meet both current and future requirements of Health Canada’s Limits of Exposure to Radio Frequency Fields? Did Health Canada review and approve the analysis? How can the public get access to the analysis?

17. Does Health Canada’s Limits of Exposure to Radio Frequency Fields require the proponent to install equipment on the antenna to control radio frequency electromagnetic fields? If not, why not? If Health Canada does require the installation of safety equipment, what type of equipment is it and what is the equipment intended to do?

18. Does Health Canada know who will measure the radio frequency electromagnetic fields emitted from this antenna? Will it be the proponent or will it be a government agency?

19. Does Health Canada require that measurements of the radio frequency electromagnetic fields associated with this type of installation be done on a regular basis as the capacity of the communications tower increases over time? If not, how is the public to know that the increase in the number of antennas on the tower does not create health problems for those in the immediate vicinity?

20. Does Health Canada require that the results of the measurements of the radio frequency electromagnetic fields from antennae of this magnitude be made available to the public on a regular basis? If not, why not and what can Health Canada do to make the information available to the public?

This petition is being submitted by:

James Riordan
170 Braun Road
Breckenridge Sector
Luskville, Pontiac QC J0X 2G0

Telephone: 819 455 9414
Email: jamesmriordan@gmail.com

References

1. Technical drawing – “Elevation de la Tour Autoportante de 82m”. Attached in hard copy as Attachment #1.

2. Letter from proponent stating exclusion from environmental assessment under the Canadian Environmental Assessment Act.
https://mail.google.com/mail/?ui=2&ik=665e6f3abb&view=att&th=128b270ec6cd0665&attid=
0.1&disp=attd&zw
Letter is attached in hard copy as Attachment #2.

3. Exclusion List Regulations amendment, SOR/2007-108, which describes the conditions under which proponents can be exempted from doing an environmental assessment. http://www.canlii.org/en/ca/laws/regu/sor-2007-108/latest/sor-2007-108.html Section 20 of Exclusion List Regulations also attached in hard copy as Attachment 3.

4. Technical drawing – “Site … vue en plan” is attached as Attachment 4.

5. Technical drawing – “Abri d’equipment …elevation”.
Attached in hard copy as Attachment #5.

6. Industry Canada’s policy document Radio communication and Broadcasting Antenna Systems (CPC-2-0-03) provides guidance to proponents. http://www.ic.gc.ca/eic/site/smt-gst.nsf/eng/sf08777.html

Section 7.4 of the policy document entitled Canadian Environmental Assessment Act is attached in hard copy as Attachment #6.

7. Letters from proponent stating compliance with Health Canada’s Safety Code #6, “Limits of Exposure to Radio Frequency Fields
https://mail.google.com/mail/?ui=2&ik=665e6f3abb&view=att&th=128b270ec6cd0665&attid=0.2&disp=attd&zw Also available in hard copy as Attachments #7 and 7A.

8. Breckenridge Creek Nature Preserve. Attached is a brochure prepared by Environment Canada entitled “An Ancestral Land and its Natural Pastures Preserved in Perpetuity”.
https://mail.google.com/mail/?ui=2&ik=665e6f3abb&view=att&th=129051a9695d7494&attid=0.1&disp= attd&realattid=f26b5c0f8414e1d0_0.1&zw Also in hard copy as Attachment 8.

9. Communication towers, lights and birds: successful methods of reducing the frequency of avian collisions.
https://mail.google.com/mail/?ui=2&ik=665e6f3abb&view=att&th=129133a4886a68e0&attid=
0.0&disp=attd&zw
Also available in hard copy see Attachment 9.

10. "Residents seek reassurance in wake of deadly slide" is attached for your information as Attachment #10. http://www.theglobeandmail.com/news/national/quebec/residents-seek-reassurance-in-wake-of-deadly-slide/article1566970/?service=email.

11. Attached is a link to an Ottawa Citizen article: “The bizarre mechanics of a Leda clay landslide” http://www.canada.com/ottawacitizen/news/story.html?id=311775e1-da21-4291-a4a2-bc0fe7ef963a Also available in hard copy see Attachment #11.

*[attachments not posted]

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Minister's Response: Environment Canada

[Environment Canada provided a supplementary response to this petition. The original response follows.]

22 December 2010

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

Dear Mr. Riordan:

I am writing to follow up on Environment Canada’s response to your Environmental Petition No. 301, 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.

The former Minister of the Environment responded to your petition on November 3. However, it has come to our attention that no response was provided for questions 5 and 6 of your petition. I am, therefore, providing the following response to those questions.

Question 5: Will the Minister ask the Industry Minister to make it clear to proponents of radio communication antennae that they must cease using their interpretation of the Act to exclude telecommunications projects from environmental assessments? Why would the Minister not be willing to do so?

The Canadian Environmental Assessment Act (the Act) is based on the principle of self assessment; that is, the federal authority that has a decision to make in regards to a proposed project is also responsible for determining whether an environmental assessment is required and, if so, ensuring that one is conducted. Federal authorities are responsible for complying with the Act; therefore it is Industry Canada’s responsibility to determine if a proposed project is excluded from the requirements of an environmental assessment, not the proponent.

Question 6: Is there a mechanism, either statutory or non-statutory, for contesting or appealing the self-determination by a proponent that a communication antenna should be excluded from an environmental assessment under the Canadian Environmental Assessment Act? If not, can the Minister explain how Canadians, who see what appears to be the misinterpretation of federal legislation, can contest or appeal exclusions from federal environmental assessments under the Act?

The self-assessment aspect of the legislation applies to federal authorities and not to proponents. It is federal authorities that are required to determine if an environmental assessment is required in accordance with the Canadian Environmental Assessment Act and if so, to ensure that an environmental assessment is conducted and a determination is made as to the potential for significant adverse environmental effects.

There is no statutory mechanism provided for in the Act for contesting or appealing a decision by a federal authority to exclude a project in accordance with the Exclusion List Regulations, 2007. Non-statutory mechanisms include communicating with the federal authority that made the determination, filing a petition with the Commissioner of the Environment and Sustainable Development of Canada, as you have done, to express concerns, or seek legal advice. The Federal Courts Act establishes the jurisdiction of the Federal Court and the Federal Court of Appeal to hear and determine applications for judicial review in respect of decisions or orders of federal boards.

I trust that you will find this information helpful.

Sincerely,

[Original signed by John Baird, Minister of the Environment]

John Baird, P.C. M.P.

Enclosure

c.c.: The Honourable Tony Clement, P.C., M.P.
The Honourable Leona Aglukkaq, P.C., M.P.
Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development


[Original response]

3 November 2010

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

Dear Mr. Riordan:

I am writing in response to your Environmental Petition No. 301, 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 15, 2010.

Enclosed you will find Environment Canada’s response to your petition. I understand that the Minister of Industry, the Honourable Tony Clement, and the Minister of Health, the Honourable Leona Aglukkaq, will be responding separately to questions that fall under their respective mandates.

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

Sincerely,

[Original signed by Jim Prentice, Minister of the Environment]

The Honourable Jim Prentice, P.C. Q.C., M.P.

Enclosure

c.c.: The Honourable Tony Clement, P.C., M.P.
The Honourable Leona Aglukkaq, P.C., M.P.
Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development


Environment Canada’s response to Environmental Petition No. 301, 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.

Question 1: What was Parliament’s intent in providing for exclusions from environmental assessments under the Canadian Environmental Assessment Act?

The Canadian Environmental Assessment Act (the Act) sets out the responsibilities and procedures for environmental assessments of projects where the federal government is the proponent, funds the project, leases the land, or issues a licence or a permit.

Under the Act, there are a variety of exclusion mechanisms. Most importantly, section 59 of the Act provides the Governor in Council with the authority to make regulations exempting any projects or classes of projects from the requirement to conduct an assessment under the Act that:

59(c)(i) in the opinion of the Governor in Council, ought not to be assessed for reasons of national security,

59(c)(ii) in the case of projects in relation to physical works, in the opinion of the Governor in Council, have insignificant environmental effects, or

59(c)(iii) have a total cost below a prescribed amount and meet prescribed conditions.

The authority to exclude projects from requiring an environmental assessment is necessary because of the way the Act is structured. The construction, operation, modification, decommissioning, abandonment or other undertaking in relation to any physical work, for which there is a federal trigger, would require an environmental assessment. However, there are numerous projects that have insignificant environmental effects and do not warrant a federal environmental assessment. Thus, the Exclusion List Regulations, 2007 are a key component of the federal environmental assessment legislative framework.

The Governor in Council has excluded the classes of projects in the Exclusion List Regulations, 2007 from environmental assessment as it was of the opinion that they have insignificant environmental effects.

Question 2: Section 20(1)(a)(i) of the Exclusion List Regulations states that the proposed construction … of a radio communication antennae ,,(can be excluded from an environmental assessment) if the antenna and supporting structure are either affixed to a building or located entirely within 15 m of a building.

Those constructing this radio communication antenna appear to be interpreting the legislation as allowing exclusion from environmental assessment under the Canadian Environmental Assessment Act if they build a small structure e.g. a 10ft/10ft “building” and then construct the 82 meter high antenna 15 m from the “building”. In reviewing the legislation this appears to be a “loophole”.

This is the critical question. When including factor (20(1)(a)(i)) in the Exclusion List Regulations was the intention of Parliament that the building be an ‘existing’ building? If not, why are the two references to “a building” in the clause?

As noted in the response to question 1, under the Canadian Environmental Assessment Act, it is the Governor in Council that has the authority to make regulations exempting any projects or classes of projects from the requirement to conduct an assessment.

Subparagraph 20(1)(a)(i) of the Exclusion List Regulations, 2007 applies to an existing building. In the context of the Regulations, the term ‘building’ is to be understood as referring to an existing building.

Question 3: Can the Minister of the Environment put forward an amendment to the Exclusion List Regulations to improve the environmental legislation designed to ensure that environmental assessments are completed for installations of type and size? Can the Minister do this by adding the word “existing” in front of the word “building” in section 20 (1)(a)(i) of the Exclusion List Regulations? If not, how can the Minister ensure that this loophole in the legislation is closed?

In the context of the Exclusion List Regulations, 2007, the term ‘building’ is to be understood as referring to an existing building. As such, there is no loophole in the Regulations and thus an amendment to the Exclusion List Regulations, 2007 is not required.

Question 4: Recognizing that amending legislation and regulations takes time, even if it is only adding one word to provide clarity, would the Minister notify his colleague, the Minister of Industry, that section 20 (1)(a)(i) is intended to mean “existing” building? If not, why would the Environment Minister not be willing to do so?

The Canadian Environmental Assessment Act (the Act) is based on the principle of self-assessment. A federal authority that has a decision to make in regards to a proposed project is responsible for determining if an environmental assessment is required and ensuring that one is conducted if required. The determination of whether a proposed project requires an environmental assessment under the Act or is excluded rests with the federal authority involved.

However, references to “a building” in the Exclusion List Regulations, 2007 should be interpreted as meaning an “existing” building. Industry Canada officials are aware of this interpretation.

Question 7: Now that the Ministers of Industry and Environment are aware that the proposed site for an 82 meter high antenna would share a property line with the 440 acre Breckenridge Creek Nature Preserve, which was established under Environment Canada’s Ecological Gifts Program to be “preserved in perpetuity”, should an environmental assessment be required under the Act? If not, why would an environmental assessment not be required?

The fact that an ecological gift property is adjacent to the proposed project location is not a trigger under the Canadian Environmental Assessment Act (CEAA). Therefore, an environmental assessment under CEAA would not be required.

The proposed project is not expected to jeopardize the ecological integrity of the ecological gift property, even with this additional pressure (i.e. a 82‑metre communication tower).

The goal of the Ecological Gifts Program is to attract, certify and secure the most important and ecologically sensitive habitat. Although these gifts may be close to agricultural or industrial activities, and even municipalities, they should not be excluded on that basis, as they may still have significant ecologically sensitive characteristics.

Question 8: Now that Industry Canada and Environment Canada are aware that the proposed site for an 82 meter high antenna will have some impact on an established program to reintroduce an endangered species of migratory bird, should an environmental assessment be required under the Act? If not, why not?

The Species at Risk Act (SARA) is not a law-list trigger under CEAA’s Law List Regulations. Therefore, SARA does not trigger an environmental assessment under CEAA. In addition, the Migratory Birds Convention Act, 1994 (MBCA 1994) will not trigger an environmental assessment under CEAA, because permits under the MBCA 1994 will not be required for this project. Nevertheless, it is an offence, under the MBCA 1994, to disturb, destroy or take a nest, egg, nest shelter, eider duck shelter or duck box of a migratory bird. As well, it is an offence, under SARA, to kill, harm, harass, capture, take, possess, collect, buy, sell or trade an endangered migratory bird, and to damage or destroy its residences.

Please note that an authorization may be required under Quebec legislation. For more information on the type of authorizations and the associated assessments that are required for this project, the proponent should contact the Ministère du Développement durable, de l’Environnement et des Parcs du Québec, Government of Quebec, 30th Floor, Marie-Guyart Building, 675 René-Lévesque Boulevard East, Québec QC G1R 5V7.

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Minister's Response: Health Canada

November 10 2010

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

Dear Mr. Riordan:

This is in response to your environmental petition no. 301 of June 21, 2010, addressed to Mr. Scott Vaughan, the Commissioner of the Environment and Sustainable Development (CESD).

In your petition you raised concerns regarding the human health effects of a proposed communications tower to be built in a residential area.

I am pleased to provide you with the enclosed Health Canada response to your petition. I understand that the Minister of Industry and the Minister of the Environment and of the Canadian Environmental Assessment Agency will be responding separately to questions that come under the purview of their respective department or agency.

I appreciate your interest in this important matter, and hope that you will find this information useful.

Sincerely,

[Original signed by Leona Aglukkaq, Minister of Health]

Leona Aglukkaq

Enclosure

c.c. The Honourable Tony Clement, P.C., M.P.
The Honourable Jim Prentice, P.C., Q.C., M.P.
Mr. Scott Vaughan, CESD


Health Canada Response to
Environmental Petition No. 301 filed by Mr. James Riordan
under Section 22 of the Auditor General Act
Received July 15, 2010

Petition for the exclusion from an environmental assessment under
the Canadian Environmental Assessment Act

November 12, 2010

Minister of Health

Q15. Would the Minister of Health elaborate on how a proponent for a radio communications antenna can provide written assurance that the facility will be operated in accordance with any future amendments to Health Canada’s Safety Code 6?
Q16. Is Health Canada aware of any analysis that was undertaken to demonstrate that the project would meet both current and future requirements of Health Canada’s Limits of Exposure to Radio Frequency Fields? Did Health Canada review and approve the analysis? How can the public get access to the analysis?

Response to Questions 15 and 16:

Health Canada's mandate with regard to human exposure to radiofrequency fields is to carry out research into possible health effects and to monitor the scientific literature related to such effects. The scientific data obtained from these activities are important for the development of exposure guidelines such as Safety Code 6. The department has no role in reviewing or approving communication tower projects. All regulatory authorities for radiocommunication installations and apparatus fall under the authority of Industry Canada. Industry Canada has adopted applicable exposure guidelines found in Safety Code 6 for protection of the general public. As Health Canada has no role in reviewing or approving projects, it would not be aware of analysis conducted on this specific project.

Q17. Does Health Canada’s Limits of Exposure to Radio Frequency Fields require the proponent to install equipment on the antenna to control radio frequency electromagnetic fields? If not, why not? If Health Canada does require the installation of safety equipment, what type of equipment is it and what is the equipment intended to do?
Q18. Does Health Canada know who will measure the radio frequency electromagnetic fields emitted from this antenna? Will it be the proponent or will it be a government agency?
Q19. Does Health Canada require that measurements of the radio frequency electromagnetic fields associated with this type of installation be done on a regular basis as the capacity of the communications tower increases over time? If not how is the public to know that the increase in the number of antennas on the tower does not create health problems for those in the immediate vicinity?

Response to Questions 17-19:

Since Health Canada has no role in authorizing radio-communication equipment, the Department does not require the proponent to install equipment on the antenna to control radio frequency electromagnetic fields.

Industry Canada’s antenna siting procedures indicate that:”Compliance with Safety Code 6 is an ongoing obligation. All proponents and operators of antenna systems are required by Industry Canada to comply with exposure limits on an ongoing basis, including if the capacity of the installation increases, taking into consideration the local radio environment.” Industry Canada confirms this compliance through their audit program by conducting many radiofrequency field measurements.

Health Canada does not require measurements of the radio frequency electromagnetic fields associated with specific installations. However, every year there are tens of thousands of new and amended radiocommunication and broadcasting installations in Canada. Industry Canada has confirmed that the vast majority of these installations comply with the exposure limits by a very wide margin.

Q20. Does Health Canada require that the results of the measurements of the radio frequency electromagnetic fields from antennae of this magnitude be made available to the public on a regular basis? If not, why not and what can Health Canada do to make the information available to the public?

Response to Question 20. Health Canada has no regulatory role in the licensing and compliance of radiocommunication towers and antennae, and thus does not require that information about radiofrequency emissions from these sources be made available to the public.

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Minister's Response: Industry Canada

14 December 2010

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

Dear Mr. Riordan:

I am writing to provide you with Industry Canada’s response to your Environmental Petition, No. 301, which was received on June 30, 2010, by Mr. Scott Vaughan, Commissioner of the Environment and Sustainable Development. I am pleased to respond to your questions that fall within Industry Canada’s area of responsibility.

Question 7: Now that the Minsters of Industry and Environment are aware that the proposed site for an 82 meter high antenna would share a property line with the 440 acre Breckenridge Creek Nature Preserve, which was established under Environment Canada’s Ecological Gifts Program to be “preserved in perpetuity”, should an environmental assessment be required under the Act? If not, why would an environmental assessment not be required?

Question 8: Now that Industry Canada and Environment Canada are aware that the proposed site for an 82 meter high antenna will have some impact on an established program to reintroduce an endangered species of migratory bird, should an environmental assessment be required under the Act? If not, why not?

Question 9: The Ministers of Industry and Environment are now are aware that the proposed site for an 82 meter high antenna is identified as being deposits of unstable Leda clay and, according to Laval University, “impossible for geologists to predict where a landslide will occur or how large it would be”. Considering the magnitude of the landslide in Saint-Jude, Quebec in May and the fact that there has been a recent landslide adjacent to the proposed site, should an environmental assessment be required under the Canadian Environmental Assessment Act? If not, why would an assessment not be required?

Question 10: With regard to the proposed project (GA612-03), does Industry Canada know if the above three factors (nature preserve, migratory birds or Leda clay) were considered by the proponent when the proponent determined that it was excluded from an environmental assessment under the Canadian Environmental Assessment Act? If the department was not aware of these factors, how would it amend its policy (CPC-2-0-03) to ensure that Industry Canada would be informed of these types of factors in future proposals?

Industry Canada requires that the installation or modification of antenna systems be done in a manner that complies with the Canadian Environmental Assessment Act (CEAA) and, therefore, no modification of CPC-2-0-03 is required to consider issues that the CEAA deems relevant. The proponent of the antenna system that intended to share a property line with the Breckenridge Creek Nature Preserve in Pontiac, Quebec, has withdrawn its proposal. Accordingly, there is no need to consider whether an environmental assessment under theCEAA is required. You may wish to contact the Canadian Environmental Assessment Agency if you have any questions about the CEAA and whether the issues you have raised would hypothetically trigger an assessment.

Question 11: With regard to radio telecommunications antennae, Industry Canada has a two-fold mandate: “to facilitate an open and transparent process with respect to antenna siting while ensuring the continued development of radio communication and broadcasting.” Is it appropriate to have the department responsible for tower siting and the continued development of radio communication also responsible for determining if a radiocommunication project requires an environmental assessment under the Canadian Environmental Assessment Act? Can you elaborate on why it would be considered appropriate?

The CEAA applies to all antenna towers approved by Industry Canada. However, please note that CEAA regulations that exclude projects from environmental assessment due to insignificant environmental effects are mandated by the Governor in Council, not the department. If an antenna system proposal is captured under the CEAA’s Exclusion List Regulations, there is no need to conduct an environmental assessment. You may wish to contact the Canadian Environmental Assessment Agency regarding any questions that you may have regarding this matter.

Question 12: Before Industry Canada accepts a proponent’s conclusion that a project is excluded from an environmental assessment under the Canadian Environmental Assessment Act, should Industry Canada be required to consult with Environment Canada on the rationale for the exclusion? If not, why not?

Under the CEAA, there is no requirement for Industry Canada to consult with Environment Canada on the rationale for the exclusion of an antenna system. Industry Canada is obligated to ensure that any required assessments are carried out in compliance with the CEAA. If a project is captured under the CEAA’s Exclusion List Regulations, then it is excluded from the requirement to conduct an environmental assessment.

Question 13: In a letter to Citizens of the Pontiac, the proponent states that it has “acquired 17 operating licenses from Industry Canada” to build a cutting-edge Advanced Wireless Services network. Would the Industry Minister explain if this means that the proponent will be building 17 communications towers and, how many of these are or will be excluded from an environmental assessment under the Canadian Environmental Assessment Act?

The proponent was the successful bidder on 17 spectrum licences in a spectrum auction in 2008 (which may have been referred to as 17 “operating licences” by the proponent). The radio authorizations that were available for assignment in that auction are a type known as “spectrum licences,” and the number of spectrum licences issued does not necessarily equal the number of communication towers that will be built. The number of antenna systems to be installed is dependent on the design of the network which, in part, is dependent on public demand for the service. In order for these services to work, antenna systems, including masts, towers and other supporting structures, are required.

There is a certain measure of flexibility in the placement of antenna systems which is constrained to some degree by the need to achieve acceptable coverage for the service area; the availability of sites; technical limitations; and safety. The proponent is permitted to install a sufficient number of antenna systems to satisfy the network’s design requirements while respecting that each new antenna proposal must follow and fulfill Industry Canada’s antenna siting procedures. This includes the requirement that antenna systems be installed and modified in a manner that complies with the CEAA.

Industry Canada is not in a position to answer your question about how many antenna systems will be excluded under the CEAA in the future. The number of antenna systems the proponent will install is dependent on network design and public demand. As this is impossible to accurately predict, Industry Canada cannot speculate on the number of future non-excluded sites.

Question 14: Can the Industry Minister also provide details on the number of operating licenses the department has issued on an annual basis over the last five years and, the number of these licensed antennas that were excluded from environmental assessments under the Canadian Environmental Assessment Act?

Over the past five fiscal years (April 1 to March 31), Industry Canada issued the following number of new licences, including spectrum licences as previously described:

Year

Industry Canada New Licences

2005–06

11,037

2006–07

7,970

2007–08

8,717

2008–09

8,404

2009–10

8,841

The antenna systems associated with these licences may be installed on existing or new antenna towers, rooftops or other appropriate antenna-supporting structures. Industry Canada does not keep records on the type of structure that is used to support each antenna.

Additionally, Industry Canada does not maintain a database of antenna system projects that are excluded from environmental assessment. The Canadian Environmental Assessment Agency maintains a database of all environmental assessments, including those carried out on radiocommunication antenna systems.

I appreciated this opportunity to respond to your petition questions. I trust that this information is helpful.

Yours sincerely,

[Original signed by Tony Clement, Minister of Industry]

Tony Clement

c.c. Mr. Scott Vaughan