Part A - Class EA Planning Process

A.2.8   CHANGING THE PROJECT STATUS – APPEAL PROCESS

A.2.8.1 Part II Order

It is recognized that the planning and design process, as outlined, is one which allows for concerns to be identified and resolved through the course of the project's planning. In some circumstances, however, it is possible that issues may be raised during public review of a project that cannot be easily accommodated. In cases where concerns are raised it is the proponent’s obligation, as proponent, to use all reasonable means available to them to resolve these concerns. In circumstances where interested persons, Aboriginal communities, or government agencies feel that the proposed undertaking needs to be made subject to a more rigorous planning, design and documentation procedure, a Part II Order request can be made.

The Part II Order is the legal mechanism whereby the status of an undertaking can be elevated from an undertaking within a Class EA to higher level of review, including an Individual EA.  According to section 16 of the EAA, the Minister or delegate may by order require a proponent to comply with Part II of the EAA which requires the preparation of an individual EA before proceeding with a proposed undertaking to which a Class EA would otherwise apply.  Under this same section of the EAA, the Minister or delegate may also deny the request and impose conditions with respect to a proposed undertaking.

It is the responsibility of the proponent to advise the public of their right to request a Part II Order in public notifications (see Appendix 6).  Any interested persons, Aboriginal communities, or government agency may request the Minister or delegate to issue a Part II Order within the public review period for a Project File, Environmental Study Report or an Addendum. In the case of an Addendum, only the Addendum (the change to the project) shall be considered in a request for a Part II Order.

A valid Part II Order request:

  • Must be made in writing to the Minister or delegate with a copy to the proponent.
  • Must be made after all of the planning is complete (after the Notice of Completion is issued and within the specified review period outlined in the Notice) so that all of the potential environmental effects and impact management measures are understood.
  • Must not be made for the sole purpose of delaying, stopping or frustrating the planning and implementation of a class environmental assessment project (such requests will not be considered).
  • Must focus on potential environmental effects of the project, the class environmental assessment process, and not on decisions made outside the class environmental assessment process (for example, land use planning decisions made under the Planning Act or issues related to municipal funding of projects).
  • Must not raise issues that are not related to the project.
  • Should be withdrawn promptly by the requester if the proponent has satisfied the concerns of the requester.

 

A.2.8.2 Procedure to Request a Part II Order

The purpose of this Section is to outline the details surrounding a Part II Order request:

1)   An interested person, Aboriginal community, or government agency with a concern about a project would bring the concern to the attention of the proponent.

      Proponents are required to provide several opportunities for public notification and consultation throughout the Class EA planning process such as newspaper notices, workshops, open houses and request for comments.  Those who are directly affected by the proposed project as well as the general public should share the responsibility for being involved in the planning process.

      Members of the public having concerns about the potential environmental effects of a project or the planning process being followed have a responsibility to bring their concerns to the attention of the proponent early in the planning process, when the proponent has greater flexibility to accommodate changes in the project development and the process.

      Proponents have the discretion of determining whether they need to delay or extend the completion of their project and can enter into discussions with stakeholders to address outstanding issues as part of the process. The proponent can also voluntarily elevate the status of the project from a Schedule B to a Schedule C process or to an individual EA.

In order  to ensure that the proponent’s evaluation of the environmental impacts and the mitigating measures being proposed are fully understood by all stakeholders, members of the public expressing concerns should be advised not to make a request for a Part II Order until planning is complete.  Requests for an order made before the 30-day review period will be considered by the Minister or delegate to be premature.

 

2)   If any reasonable concerns relevant to the project cannot be resolved by any means employed by the proponent including self-directed mediation, the interested persons, Aboriginal communities, or government agencies may formally request that the proponent submit the undertaking to a higher level of assessment, such as a Schedule C process for a Schedule B activity or an Individual EA under Part II of the EAA.

3)   If the proponent is unwilling to elevate the status of the undertaking or determines that an elevation of the undertaking’s status is inappropriate, the interested persons, Aboriginal community, or the government agency with the concern, may submit a Part II Order request within 30 days of the “Notice of Completion” or “Notice of Filing of an Addendum” date.

      Requests made or received after the 30 calendar day comment period may not be considered by the ministry.

      The request to issue a Part II Order must be made in writing to the Minister of the Environment and Climate Change or delegate, and be received by the ministry within the 30-day comment period following issuance of the Notice of Completion or Notice of Addendum. The request must include the name, address and contact information of the requester and clearly indicate that a request for a Part II Order is being made.  The request must address the following issues as they relate to the identified concerns with the potential environmental effects of the project or the planning process followed.

  • project name and proponent must be clearly outlined;
  • environmental impacts of the project and their significance;
  • the adequacy of the planning process;
  • the availability of other alternatives to the project (where appropriate as some projects may not have any alternative);
  • the adequacy of the public consultation program and the opportunities for public participation;
  • the involvement of the requester in the planning of the project;
  • the nature of the specific concerns which remain unresolved;
  • details of any discussions held between the requester and the proponent;
  • the benefits of requiring the proponent to undertake a higher level of assessment (e.g. an individual environmental assessment); and
  • any other important matters considered relevant.

     The requester shall forward a copy of the request to the proponent and the EAB at the same time as submitting it to the Minister or delegate.  Please note that all personal information included in a submission – such as name, address, telephone number and property location – is collected, maintained and disclosed by the MOECC for the purpose of transparency and consultation.  The information is collected under the authority of the EAA or is collected and maintained for the purpose of creating a record that is available to the general public as described in s.37 of the Freedom of Information and Protection of Privacy Act.  Personal information that is submitted will become part of a public record that is available to the general public unless a request is made that personal information remain confidential.  For more information, the ministry’s Freedom of Information and Privacy Coordinator can be contacted at 416-327-1434.

4)   The EAB will advise the proponent within 10 working days of the receipt of a Part II Order request and will provide the proponent with an opportunity of making a submission to address the issues raised in the Part II Order request.  The proponent also has the option of advising the Director of the EAB in writing if they are prepared to voluntarily carry out an individual EA or a higher level of assessment (e.g. elevate from a Schedule B to a Schedule C project).  This should be done within one week of being advised that there has been a Part II Order request or as soon as is reasonably possible.  The Director of the EAB would then advise the requester that the individual EA or higher level of assessment will be carried out, which would negate the need for further review of the Part II Order requests by EAB.

     The review of any Part II Order requests by EAB will commence after the end of the 30-day comment period following issuance of the Notice of Completion or Notice of Filing of an Addendum, and upon receipt of all necessary and satisfactory information from the requester, the proponent, other government agencies and/or interested persons.

The EAB may consult with other government agencies and/or other interested persons during the review of a Part II Order request. The EAB may also request additional documentation from the proponent or the requester. If there are critical deficiencies in the documentation submitted by the proponent, the EAB may require the proponent to submit additional information. The proponent will need to respond to the issues raised and provide a written record of their responses to the EAB. Proponents will also need to provide information (i.e. consultation summary / record of consultation) to EAB about how First Nation and Métis communities were consulted during the planning process. The proponent shall provide the information within the requested time frame. Within a minimum target of 45 days of receiving all necessary information, the EAB will review the information and prepare a recommendation for the Minister or delegate’s consideration. The EAB will focus on the issues associated with the request, the review of the documentation, and the proponent’s response. EAB will also review the proponent’s Aboriginal consultation activities undertaken in accordance with Section A.4 (Documentation and Revisions - Addenda) and will make a recommendation to the Minister or delegate.

It is possible that proponents can continue discussions with requesters during the ministry review period of the Part II Order request as long as EAB is notified in writing and a reasonable timeframe is set for those discussions (e.g. 30-days). The requester shall not unreasonably delay the project in this regard. If longer periods of time are required to continue discussions, proponents and the ministry will have to consider if the project needs to be withdrawn and whether the notices need to be reissued.

Should the ministry review period for the Part II Order be extended, the start of timelines for the review of any Part II Order request by EAB will be deferred accordingly. If the proponent satisfies the concerns of the requester, it is the requester’s responsibility to withdraw the request for a Part II Order as soon as possible.  Such withdrawals should be in writing to the Minister or delegate and should be copied to the proponent and the EAB.  The Director of the EAB may accept and may act upon such withdrawals on behalf of the Minister.

A.2.8.3 Minister’s Decision

As part of the Minister or their delegate's decision-making process, the Minister or their delegate will consider the information submitted by the proponent, the person requesting the Part II Order and any interested persons, Aboriginal community, or government agency, the Minister or delegate chooses to consult before making a decision.  The Minister or delegate will also consider the evaluation criteria for Part II Order requests found in subsection 16(4) of the EAA and other matters that the Minister may consider appropriate, as follows:
  • the purpose of the EAA;
  • extent and nature of public concern;
  • potential for significant adverse environmental effects;
  • need for broader consideration of alternatives by the proponent;
  • consideration of urgency;
  • participation of the requester in the planning process;
  • nature of request (i.e. substantiation of claims with regard to identification of factors that suggest that the proposed undertaking differs from other undertakings in the class to which the Class EA project applies);
  • degree to which public consultation and dispute resolution have taken place;
  • any reasons given by a person who requests the order;
  • the mediator’s report, if any;
  • the timeliness of the request and the timeliness of the requester raising the issues and/or concerns with the proponent;
  • Ministry’s Statement of Environmental Values; and
  • any other important matters as the Minister considers appropriate.

 

The Minister or delegate will make a decision to do one of the following:

If the Minister or delegate issues a Part II Order, then he/she shall give notice, with reasons, to the proponent, the person requesting the Part II Order, and to any other interested persons, Aboriginal community, or government agency as the Minister or delegate considers appropriate.  The proponent shall then adhere to the Order if it wishes to pursue implementation of the undertaking.

If the Minister or delegate refers the matter to mediation then he/she shall give notice, with reasons, to the proponent, the person(s) requesting the Part II Order, and to any other interested persons, Aboriginal community, or government agency as the Minister or delegate considers appropriate.  When referring a matter to mediation, section 8 of the EAA will apply, including the appointment, by the Minister or delegate, of one or more neutral persons to act as mediators; the preparation of a report by the mediator to the Minister or delegate within 60 days of appointment, and the payment of the fees and reasonable expenses of the mediators by the proponent.

If the Minister or delegate denies the Part II Order request with or without conditions, he/she shall give notice, with reasons, to the person requesting the Part II Order, the proponent and to any other interested persons, Aboriginal community, or government agency as the Minister or delegate considers appropriate.  The proponent then continues to plan and implement the undertaking under this Class EA.  Any conditions which the Minister or delegate might apply to the decision to deny the Part II Order request must be adhered to by the proponent when implementing the project. It is noted that it is possible that a higher level of assessment (such as requiring the proponent to undertake a Schedule C process for a Schedule B activity) may be required through a condition of the denial.