Ontario Regulation 170/24 made under the Environmental Protection Act Made: March 21, 2024 Filed: April 16, 2024 Published on e-Laws: April 16, 2024 Published in The Ontario Gazette: May 4, 2024 Amending O. Reg. 241/19 (GREENHOUSE GAS EMISSIONS PERFORMANCE STANDARDS) 1. (1) Subsection 1 (1) of Ontario Regulation 241/19 is amended by adding the following definitions: “activity component” has the same meaning as in the Reporting Regulation; (“composante d’activité”) “EPS parameter” has the same meaning as in the Reporting Regulation; (“paramètre NRE”) “GHG ID” means the identification number set out in Appendix A of the Methodology in respect of an EPS facility or a site that forms part of an EPS facility; (“No GES”) (2) The definition of “production parameter” in subsection 1 (1) of the Regulation is revoked. 2. (1) Subparagraph 2 iii of subsection 4 (1) of the Regulation is amended by striking out “in at least one of the three years following the year in which the eligible modification was substantially completed” at the end and substituting “in the year in which the eligible modification was substantially completed or in at least one of the three years following that year”. (2) Subparagraph 3 i of subsection 4 (1) of the Regulation is amended by striking out “before the date of first production” and substituting “before the year in which the date of first production occurs”. (3) Subparagraph 3ii of subsection 4 (1) of the Regulation is amended by striking out “in at least one of the three years following the year in which the date of first production occurs” at the end and substituting “in the year in which the date of first production occurs or in at least one of the three years following that year”. 3. (1) Subsection 8.1 (1) of the Regulation is amended by striking out “section 6 of the Reporting Regulation” wherever it appears and substituting in each case “section 6 or 7 of the Reporting Regulation”. (2) Paragraph 2 of subsection 8.1 (1) of the Regulation is amended by striking out “for each year in the three-year period following the year in which the eligible modification is substantially complete” in the portion before subparagraph i and substituting “for the year in which the eligible modification was substantially complete and for each of the following three years”. (3) Paragraph 3 of subsection 8.1 (1) of the Regulation is amended by striking out “for each year in the three-year period following the year in which the date of first production occurs” in the portion before subparagraph i and substituting “for the year in which the date of first production occurred and for each of the following three years”. (4) Paragraph 4 of subsection 8.1 (1) of the Regulation is revoked and the following substituted: 4.  The verified total annual emissions limit in respect of the facility is zero for two consecutive compliance periods in a registration period and no notice has been given by the Director to the owner or operator of the facility under section 4.1 of the Reporting Regulation in respect of either compliance period. (5) Subsection 8.1 (1) of the Regulation is amended by adding the following paragraph: 7.  An obligation under paragraph 3 of subsection 13 (1) in respect of a compliance period is not satisfied on or before February 15 in the year that is four years after the compliance period. (6) Paragraph 4 of subsection 8.1 (3) of the Regulation is amended by striking out “each production parameter” and substituting “the amount of each EPS parameter”. 4. The Regulation is amended by adding the following Part: Part II.1 Prohibition Authorized selling, trading etc. 8.3 No person shall sell, trade, transfer or otherwise deal with compliance instruments, other than a person who is authorized to do so under this Regulation and who is doing so in accordance with this Regulation. 5. Section 9.1 of the Regulation is revoked and the following substituted: Application 9.1 (1) If a person owned or operated a facility during a registration period, this Part applies to the person for each compliance period in the registration period. (2) Subsection (1) applies to a person who ceases to own or operate a facility until the person’s registration in respect of the facility is cancelled and the facility account established as a result of the registration is closed. (3) Despite subsections (1) and (2), if a new owner or operator of a facility continues a registration for the facility under section 6, (a)  the obligations set out in this Part do not apply in respect of the previous owner or operator of the facility after December 15 in the year in which the registration is continued; and (b)  any unsatisfied obligation set out in this Part in respect of a compliance period in the registration period that was required to be satisfied by the previous owner or operator of the facility on or before December 15 in the year in which the registration is continued applies to the new owner or operator of the facility. 6. Section 10 of the Regulation is revoked. 7. Subsection 11.1 (5) of the Regulation is amended by adding “after the year in which the registration was continued” at the end. 8. Section 12 of the Regulation is revoked and the following substituted: Total Annual Emissions Limit 12. (1) For the purposes of the Reporting Regulation and this Regulation, the owner or operator of an EPS facility shall determine the total annual emissions limit in respect of the EPS facility for each compliance period by taking the following steps: 1.  Identify all of the methods for determining annual activity emissions limits set out in the Methodology that apply in respect of the industrial activities engaged in at the facility. 2.  For each method that applies, determine the annual activity emissions limit in accordance with the method. 3.  If Method D applies in respect of an activity component that is part of an industrial activity engaged in at the facility, use one of the following baseline emissions intensities in the applicable annual activity emissions limits formula set out in Method D: i.  The baseline emissions intensity set out in a notice issued under subsection 12.1 (1) in respect of the activity component. ii.  If no baseline emissions intensity is set out in a notice issued under subsection 12.1 (1) in respect of the activity component and the activity component is associated with an eligible modification made to the facility or a change in the composition of sites that constitute the facility, the baseline emissions intensity determined in accordance with the applicable transitional formula set out in Method D in respect of the activity component. 4.  If Method E or G applies in respect of an activity component that is part of an industrial activity engaged in at the facility, use the baseline emissions intensity set out in a notice issued under subsection 12.1 (6) in respect of the activity component in the applicable annual activity emissions limits formula set out in Method E or G. 5.  Determine the total annual emissions limit by summing all of the annual activity emissions limits determined under paragraph 2. 6.  Round the total annual emissions limit down to the nearest whole number. (2) For the purposes of subparagraph 3 i and paragraph 4 of subsection (1), the value of the baseline emissions intensity in respect of an activity component that is part of an industrial activity engaged in at the EPS facility is deemed to be zero if, (a)  no notice given to the owner or operator of the facility under section 12.1 sets out a baseline emissions intensity in respect of the activity component; (b)  a notice given to the owner or operator of the facility under section 12.1 has been amended to remove the baseline emissions intensity in respect of the activity component; or (c)  a notice given to the owner or operator of the facility under section 12.1 setting the baseline emissions intensity in respect of the activity component is revoked. (3) Despite subparagraph 3 ii of subsection (1), the baseline emissions intensity described in that subparagraph is deemed to be zero if, (a)  the activity component is associated with an eligible modification made to the facility that was completed or substantially completed more than three years before the compliance period for which the determination mentioned in subsection (1) is being made; or (b)  the activity component is associated with a change in respect of the composition of sites that constitute the facility and the effective date of the change set out in a notice given under subsection 8 (3) is more than three years before the compliance period for which the determination mentioned in subsection (1) of this section is being made. Notice, baseline emissions intensities 12.1 (1) If requested by an owner or operator of an EPS facility, the Director may give the owner or operator written notice setting out one or more baseline emissions intensities for an activity component for use by the facility in the applicable annual activity emissions limits formula set out in Method D. (2) No request may be made for the purposes of subsection (1) in respect of a baseline emissions intensity for an activity component if any of the following circumstances exist: 1.  A notice given under this section sets out a baseline emissions intensity for the activity component in respect of the facility. 2.  The primary activity engaged in at the facility is an activity set out in item 38 (Generating electricity using fossil fuels) of Schedule 2 of the Reporting Regulation. 3.  The activity component is gold produced from mining and milling of gold ore and the GHG ID for the facility is 1056, 1193 or 1198. 4.  The activity component is steel produced in an electric arc furnace and the GHG ID for the facility is not 1055 or 1084. 5.  The activity component is an activity component set out in Table A of the Methodology, other than one mentioned in paragraph 3 or 4. 6.  The activity component is one of the following: i.  Electricity generated from a combustion device. ii.  Useful thermal energy generated from a combustion device. iii.  Fuel input, electricity use, or thermal energy transferred into the facility. 7.  The date of the request would be more than two years after the facility was first registered. (3) Despite paragraph 7 of subsection (2), if the date of the request is more than two years after the facility was first registered and none of the circumstances in paragraphs 1 to 6 of subsection (2) exist, a request may be made for the purposes of subsection (1) if, (a)  the activity component is associated with an eligible modification to the facility and the date of the request would be no later than four years after the eligible modification was completed or substantially completed; (b)  the activity component is associated with a change to the composition of sites that constitute the facility and the date of the request would be no later than four years after the effective date of the change set out in a notice under subsection 8 (3); or (c)  the facility is registered under paragraph 3 of subsection 4 (1) and the date of the request would be no later than four years after the date of first production. (4) A request mentioned in subsection (1) must contain the following information: 1.  Confirmation that none of the circumstances set out in paragraphs 1 to 6 of subsection (2) exist. 2.  An indication of whether the circumstance in paragraph 7 of subsection (2) exists and if it does, an indication of whether clause (a), (b) or (c) of subsection (3) applies to the request. 3.  A list of the activity components for which baseline emissions intensities are requested. 4.  One or more proposed baseline emissions intensities for each activity component listed under paragraph 3 that is determined in accordance with the Methodology. 5.  All data used in the calculations performed for the purposes of paragraph 4. 6.  Any other information that the Director may request in writing. (5) A notice setting out a baseline emissions intensity given under the Methodology by the Director to an owner or operator of a facility during the month of January 2024 is deemed to have been given under subsection (1). (6) The Director may give the owner or operator of a facility a notice setting out one or more baseline emissions intensities in respect of an activity component for use by the facility in the applicable annual activity emissions limits formula set out in Method E or G in any of the following circumstances: 1.  The facility is identified by GHG ID 1005 or 1042. 2.  The facility is not mentioned in paragraph 1 and no baseline emissions intensity is set out in the Methodology or in a notice given under this section in respect of the activity component and no method set out in the Methodology, other than Method E or G, addresses the activity component. 3.  The facility is not mentioned in paragraph 1 and the Director is of the opinion that a significant, permanent reduction in the facility’s annual emissions of greenhouse gases is likely to occur in the five-year period following the date that the notice is given and that the reduction will not be a result of decreased production. (7) A notice setting out a baseline emissions intensity given under the Methodology by the Director to an owner or operator of a facility on or before March 31, 2024, other than a notice described in subsection (5), is deemed to have been given under subsection (6). (8) The Director shall consider the following factors when deciding whether to give a notice under subsection (1) or (6): 1.  The type of emissions for which the baseline emissions intensity is being requested. 2.  The type of industrial activity being engaged in at the EPS facility that relates to the activity component for which the baseline emissions intensity is being requested. 3.  The equipment and technology used at the EPS facility in respect of the activity component for which the baseline emissions intensity is being requested. 4.  The material and energy that are inputs to the activity component for which the baseline emissions intensity is being requested. (9) The Director may amend or revoke a notice given under subsection (1) or (6) if the Director is of the opinion that there was an error, omission or misstatement in the information, including historical emissions data, relied upon to determine one or more values set out in the notice. (10) The Director may revoke a notice given under subsection (1) or (6) or amend such a notice to remove a baseline emissions intensity set out in the notice in respect of an activity component if the activity component is set out in Table A of the Methodology. (11) The Director may revoke a notice given to the owner or operator of an EPS facility under subsection (1) or amend such a notice to remove a baseline emissions intensity set out in the notice in respect of an activity component if, immediately after the revocation or amendment, the Director gives a notice to the owner or operator of the EPS facility under subsection (6) in respect of the activity component. (12) The Director shall not refuse a request under subsection (1) or amend or revoke a notice under subsection (9), (10) or (11) unless the Director first gives the owner or operator of the EPS facility a draft of the refusal, amendment or revocation and an opportunity to make written submissions to the Director during the period that ends 10 days after the draft is given. (13) After considering any submissions under subsection (12), the Director shall, (a)  if the Director decided not to refuse the request, give the owner or operator a notice under subsection (1); (b)  if the Director decided to refuse the request, give the owner or operator written confirmation of the decision; (c)  if the Director decided not to amend or revoke the notice, give the owner or operator written confirmation of the decision; (d)  if the Director decided to amend the notice, give the owner or operator a copy of the amended notice; or (e)  if the Director decided to revoke the notice, give the owner or operator written confirmation of the revocation and the revocation date. (14) For greater certainty, if a notice that set a baseline emissions limit in respect of an activity component has been revoked under subsection (9), (10) or (11), the Director may give a notice under subsection (1) or (6) in the future in respect to the same activity component. 9. Paragraphs 3 and 4 of subsection 13 (1) of the Regulation are amended by striking out “equal to” wherever it appears and substituting in each case “equal to or greater than”. 10. (1) Subsection 14 (1) of the Regulation is revoked and the following substituted: (1) The number determined in accordance with subsection (2) shall be substituted for the verified verification amount in subsection 13 (3) if, (a)  no verification statement for the report in respect of the facility for the compliance period mentioned in subsection 13 (3) was submitted to the Director on or before October 15 in the year following the compliance period; (b)  the verification statement for the report in respect of the facility for the compliance period mentioned in subsection 13 (3) is missing the verification amount conclusion or includes an adverse verification amount conclusion; or (c)  in the case where one or more verification statements for revised reports in respect of the compliance period mentioned in subsection 13 (3) are given to the Director on or before October 15 in the year following the compliance period, the most recent of those verification statements is missing the verification amount conclusion or includes an adverse verification amount conclusion. (1.1) The number determined in accordance with subsection (2) shall be substituted for the verified verification amount in subsection 13 (6) if the most recent verification statement for a revised report in respect of the compliance period mentioned in subsection 13 (6) given to the Director after October 15 in the year following the compliance period is missing the verification amount conclusion or includes an adverse verification amount conclusion. (2) Subsection 14 (2) of the Regulation is amended by striking out “in subsection (1)” in the portion before paragraph 1 and substituting “in subsection (1) or (1.1)”. (3) Subsection 14 (6) of the Regulation is amended by striking out “in this section” and substituting “in subsection (2)”. 11. (1) Subsection 15 (1) of the Regulation is revoked and the following substituted: (1) The number determined in accordance with subsection (2) shall be substituted for the verified total annual emissions limit in subsection 13 (3) if, (a)  no verification statement for the report in respect of the facility for the compliance period mentioned in subsection 13 (3) was submitted to the Director on or before October 15 in the year following the compliance period; (b)  the verification statement for the report in respect of the facility for the compliance period mentioned in subsection 13 (3), (i)  is missing one or more EPS parameter verification conclusions or includes an adverse EPS parameter verification conclusion, or (ii)  is missing the total annual emissions limit verification conclusion or includes an adverse total annual emissions limit verification conclusion; (c)  in the case where one or more verification statements for revised reports in respect of the compliance period mentioned in subsection 13 (3) are given to the Director on or before October 15 in the year following the compliance period, the most recent of those verification statements, (i)  is missing one or more EPS parameter verification conclusions or includes an adverse EPS parameter verification conclusion, or (ii)  is missing the total annual emissions limit verification conclusion or includes an adverse total annual emissions limit verification conclusion. (1.1) The number determined in accordance with subsection (2) shall be substituted for the verified total annual emissions limit in subsection 13 (6) if the most recent verification statement for a revised report in respect of the compliance period mentioned in subsection 13 (6) given to the Director after October 15 in the year following the compliance period, (a)  is missing one or more EPS parameter verification conclusions or includes an adverse EPS parameter verification conclusion; or (b)  is missing the total annual emissions limit verification conclusion or includes an adverse total annual emissions limit verification conclusion. (2) Subsection 15 (2) of the Regulation is amended by striking out “in subsection (1)” in the portion before paragraph 1 and substituting “in subsection (1) or (1.1)”. (3) Subsection 15 (6) of the Regulation is amended by striking out “in this section” and substituting “in subsection (2)”. 12. Section 16 of the Regulation is amended by adding the following subsection: (2.1) Despite subsection (2), if a new owner and operator of a facility continues the registration for the facility under section 6, the facility account mentioned in subsection (1) of this section in respect of a distribution on or before December 15 in the year in which the registration is continued is the facility account established as a result of the previous owner or operator’s registration. 13. Section 18 of the Regulation is revoked. 14. Clause 19 (6) (e) of the Regulation is revoked and the following substituted: (e)  the registration in respect of a facility was continued under section 6 and, (i)  the facility account into which the compliance instrument is requested to be transferred was established for the registration in respect of a previous owner or operator of the facility, and (ii)  the request is made in any year after the year in which the registration was continued. 15. Item 39 of Schedule 2 to the Regulation is amended by adding the following sub-items: xxi.1  3273 (Cement and concrete product manufacturing). . . . . . xxvii.1  3328 (Coating, engraving, cold and heat treating and allied activities). . . . . . xxix.1  33591 (Battery manufacturing). Commencement 16. This Regulation comes into force on the day it is filed.   Français