Canada Gazette, Part I, Volume 152, Number 40: DEPARTMENT OF THE ENVIRONMENT

October 6, 2018

DEPARTMENT OF THE ENVIRONMENT

CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999

Notice respecting the National Air Pollution Surveillance Program Memorandum of Understanding

Notice is hereby given that the Minister of the Environment ("the Minister") has negotiated the proposed Memorandum of Understand (MOU) with provincial and territorial governments. The Minister is publishing the MOU in accordance with subsection 9(2) of the Canadian Environmental Protection Act, 1999.

The National Air Pollution Surveillance (NAPS) Program has been in existence since 1969 and operated without a formal MOU until 2001. The previous NAPS Program MOU expired on October 12, 2017, and this new MOU has been renegotiated with all provinces and territories. The ministers intend to sign the MOU upon completion of their respective internal processes to secure authority to enter into the MOU.

Interested persons requiring additional information may contact Laird Shutt, Director General, Atmospheric Science and Technology Directorate, Science and Technology Branch, Environment and Climate Change Canada, 335 River Road South, Ottawa, Ontario K1V 1C7 or via email at laird.shutt@canada.ca.

Interested persons may, within 60 days after the publication of this notice, file with the Minister comments or a notice of objection with respect to the proposed MOU. All such comments and notices must cite the Canada Gazette, Part I, and the date of the publication, and be sent to Laird Shutt, Director General, Atmospheric Science and Technology Directorate, Science and Technology Branch, Environment and Climate Change Canada, 335 River Road South, Ottawa, Ontario K1V 1C7 or via email at laird.shutt@canada.ca.

A person who provides information to the Minister may submit an accompanying request of confidentiality under section 313 of the Canadian Environmental Protection Act, 1999.

Catherine McKenna
Minister of the Environment

MEMORANDUM OF UNDERSTANDING RESPECTING THE NATIONAL AIR POLLUTION SURVEILLANCE PROGRAM

BETWEEN

The Government of Canada
(hereinafter referred to as "Environment and Climate Change Canada" or "ECCC")

and
The governments of Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec, Saskatchewan, and the Northwest Territories, Nunavut, and Yukon
(hereinafter referred to as "the Provinces and Territories")

WHEREAS

The National Air Pollution Surveillance (NAPS) Program was established in 1969 as a collaborative partnership between the Government of Canada and the Provinces and Territories to facilitate and coordinate collection of ambient air quality data that is representative of populated areas across Canada;
Ambient air quality monitoring is an essential component of Canada's air quality management and research programs;
This collaborative partnership has evolved into a formal agreement with the Parties entering into memoranda of understanding in 2004 and 2012, each for a period of five years;
The Parties wish to continue their partnership regarding the NAPS Program and have therefore agreed to enter into this Memorandum of Understanding (MOU);
The federal Minister of the Environment can, pursuant to section 9 of the Canadian Environmental Protection Act, 1999, with the approval of the Governor-in- Council, enter into an agreement with a government with respect to the administration of this Act;
By order-in-council (OiC) ____________________ dated _____________ 2018, the federal Minister of the Environment is authorized to sign this MOU for the Government of Canada and to provide certain equipment to the Provinces and Territories under this MOU;
This MOU is based on the principles of collaboration and equitable sharing of costs and work, subject to each Party's limited available resources; and
This MOU will respect the principles found in the Canadian Council of Ministers of the Environment (CCME) Statement of Principles to Guide Cooperative Arrangements on Environmental Monitoring and Reporting, which states, among other things, that all Parties have equal standing, will act in a transparent manner, and will respect each Party's jurisdiction, needs, capabilities and mandate.

NOW THEREFORE the Parties express their desire and willingness to continue their collaboration with each other as set out below, without imposing any binding legal obligations upon any of the Parties, as follows:

1.0 DEFINITIONS

In this MOU, the following words or expressions have the following meanings:

"Annex" or "Annexes" means one or more annexes to this MOU, each being a Province- or Territory-specific listing of NAPS Sites identifying their locations, the Monitoring Equipment, and national programs supported by these sites.

"Annual Report" means a summary of a Party's activities from the previous Fiscal Year, including accomplishments, changes to organizational structure, and NAPS Site updates (e.g. new sites, closures, relocations, installation of Monitoring Equipment).

"AQHI" means Air Quality Health Index, which is a multi-pollutant index based on the combined concentrations of fine particulate matter (PM_2.5), ozone and nitrogen dioxide (NO₂).

"Canada-Wide Air Quality Database" means an ECCC-managed collection of Quality Assured Continuous Data and Quality Assured Integrated Data generated from the NAPS Sites.

"Component" or "Components" means a replacement part required for the ongoing operation of Monitoring Equipment.

"Continuous Data" means data that is collected by Provinces and Territories at NAPS Sites using continuous Monitoring Equipment.

"Effective Date" means the date on which the last Party to sign this MOU signs it.

"Fiscal Year" means the period from April 1 in any year to March 31 in the following calendar year.

"Info-Smog" means an index of daily air quality forecasts and timely smog warnings for the Province of Quebec.

"Integrated Data" means data that is generated from chemical and gravimetric analysis by the ECCC laboratories in Ottawa on Integrated Samples collected at NAPS Sites.

"Integrated Samples" means ambient air samples collected by Sampling Media from Monitoring Equipment over a specific time period (e.g. 24 hours).

"Land and Infrastructure" means the property upon which the NAPS Site is located, including site acquisition, lease, shelter, utilities, site access, permits and fees, security, safety equipment and site preparation.

"Monitoring Equipment" means the system of monitoring and sampling equipment necessary to produce Continuous Data and collect Integrated Samples at NAPS Sites.

"NAPS Guidance" means the National Air Pollution Surveillance Program Monitoring and Quality Assurance/Quality Control Guidelines [Environment and Climate Change Canada, Analysis and Air Quality Section, Report AAQS 2018, Ottawa].

"NAPS Program" means the sum of the Parties' activities involved in air quality monitoring, including the collection, validation, storage and dissemination of Continuous Data and Integrated Data from NAPS Sites.

"NAPS Program Manager" means the air quality monitoring manager designated by the respective Parties to oversee the implementation of this MOU and actively participate in the NAPS Program and meetings.

"NAPS Site" means a site approved for inclusion in the NAPS Program by ECCC and the Province or Territory where the site is located, as specified in the Annexes.

"Party" means ECCC or one Province or Territory, and "Parties" means, collectively, ECCC and all Provinces and Territories.

"Quality Assured" means, in relation to Quality Assured Continuous Data and Quality Assured Integrated Data, data that conforms to mutually agreed-upon data quality standards specified in the NAPS Guidance.

"Sampling Media" means filters, canisters, cartridges and filter packs for use with Monitoring Equipment.

"Work Plan" means an annual summary outlining a Party's planned activities for the upcoming Fiscal Year, emerging issues, changes to organizational structure, NAPS Site updates (e.g. new sites, closures, relocations) and proposed new or replacement Monitoring Equipment, and Components.

2.0 PURPOSE

2.1 The MOU will

(a) outline the general terms and conditions of collaboration and co-operation among the Parties in the overall management and support of the NAPS Program;
(b) facilitate collaboration and co-operation among the Parties in monitoring and reporting activities
- (i) to support air quality information needs of existing regional, national and international programs and agreements, and
- (ii) to support emerging air quality reporting initiatives where the Parties mutually agree on their respective scope; and
(c) identify the Parties' roles and responsibilities in relation to the above.

3.0 ROLES AND RESPONSIBILITIES

3.1 The Parties will carry out this MOU in accordance with the terms and conditions herein and subject to each Party's limited available resources.

3.2 ECCC's roles and responsibilities under this MOU will be to

(a) collaborate with the Provinces and Territories in the overall management of the NAPS Program;
(b) approve new or relocated NAPS Sites in agreement with the Province or Territory where the site is located;
(c) coordinate a national quality assurance and audit program which includes provision of laboratory calibration services, monitoring station and system audits, training and technical support, interlaboratory studies and projects for the NAPS Program as specified in the Work Plans;
(d) provide Monitoring Equipment to the Provinces and Territories as specified in the Annexes. Such equipment will remain the property of ECCC;
(e) in accordance with the Provinces' and Territories' Work Plans, provide
- (i) replacement Monitoring Equipment for NAPS Sites after a useful life expectancy of approximately twelve (12) years to ensure quality data, to keep up-to-date with changes in monitoring technology, and address evolving priorities for ambient air quality monitoring,
- (ii) Components for ECCC Monitoring Equipment when the cost of a Component exceeds one hundred dollars ($100),
- (iii) assistance with installation of ECCC Monitoring Equipment, as required,
- (iv) Sampling Media for ECCC Monitoring Equipment at NAPS Sites, and
- (v) Monitoring Equipment, Sampling Media and laboratory analysis for projects in collaboration with the Provinces and Territories, subject to the availability of ECCC resources;
(f) for in-year requests by the Provinces and Territories, provide Components for ECCC Monitoring Equipment if the cost of a Component exceeds five hundred dollars ($500);
(g) perform laboratory analysis for the NAPS Program at ECCC laboratories in Ottawa, subject to laboratory capacity and resource availability;
(h) assume shipping costs to Provinces and Territories for Sampling Media, Components and Monitoring Equipment provided by ECCC;
(i) submit to the Provinces and Territories, Quality Assured Integrated Data from NAPS Sites collected in the previous calendar year by December 31st of the current year;
(j) share Quality Assured Integrated Data with the Provinces and Territories in accordance with the terms and conditions of section 4.0 of this MOU;
(k) maintain the Canada-Wide Air Quality Database for storing Quality Assured Continuous Data and Quality Assured Integrated Data;
(l) create and maintain a NAPS document clearinghouse (website) for sharing of information among the Parties;
(m) coordinate national data reporting initiatives;
(n) prepare and share their Work Plan and Annual Report with the other Parties; and
(o) publish, with acknowledgement of the Provinces and Territories, current and forecasted AQHI or Info-Smog conditions on website and other public dissemination pathways, in addition to making those AQHI data available to media and other sources.

3.3 The Provinces' and Territories' roles and responsibilities under this MOU will be to

(a) collaborate with ECCC in the overall management of the NAPS Program;
(b) provide the Land and Infrastructure for each NAPS Site and assume all associated costs, unless otherwise indicated in the Annexes;
(c) install new and replacement Monitoring Equipment and Components provided by ECCC for NAPS Sites;
(d) ensure the maintenance, calibration and operation of the NAPS Monitoring Equipment in accordance with the NAPS Guidance;
(e) supply to ECCC, upon request, an up-to-date listing of NAPS Monitoring Equipment and their location (serial numbers and the associated NAPS Site ID);
(f) assume shipping costs for returning Sampling Media, Components and Monitoring Equipment to ECCC;
(g) collect, process, manage, analyze and report Continuous Data for NAPS Sites;
(h) submit to ECCC, Quality Assured Continuous Data from NAPS Sites collected in the previous calendar year no later than June 30th of the current year for inclusion in the Canada-Wide Air Quality Database;
(i) share Quality Assured Continuous Data with ECCC in accordance with the terms and conditions of section 4.0 of this MOU;
(j) conduct research and development including special studies for air quality monitoring, sampling and analysis in collaboration with the other Parties as indicated in the Work Plan;
(k) prepare and share their Work Plan and Annual Report with the other Parties; and
(l) submit near-real time Continuous Data to ECCC for the production of air quality forecasting for the NAPS Sites identified "AQHI" or "Info-Smog" in the Annexes.

4.0 DATA SHARING

4.1 Subject to the Parties' respective obligations, which may arise pursuant to applicable federal and provincial legislation, policies, and contractual obligations, the Parties agree that

(a) Continuous Data belong to the Province or Territory responsible for the NAPS Site where it was generated. Subject to subsection 3.3(l), each of the Provinces and Territories undertakes to disseminate their Continuous Data to the public as soon as is practicable;
(b) The Provinces and Territories grant to ECCC a worldwide, non-exclusive and non-restricted right to exercise all of the intellectual property rights in respect of the Quality Assured Continuous Data, which for sake of clarity includes the right to make the Quality Assured Continuous Data available to the public
- (i) on terms that are no less generous than what is included herein in order to promote access to open data, and
- (ii) including on websites and in publications, provided that the owner of the Quality Assured Continuous Data is identified;
(c) Integrated Data belong to ECCC. ECCC undertakes to share its Quality Assured Integrated Data fully and freely among the Provinces and Territories and to disseminate it to the public as soon as is practicable;
(d) ECCC grants to the Provinces and Territories a worldwide, non-exclusive and non-restricted right to exercise the intellectual property rights in respect of the Quality Assured Integrated Data, which for sake of clarity includes the right to make the Quality Assured Integrated Data available to the public
- (i) on terms that are no less generous than what is included herein in order to promote access to open data, and
- (ii) including on websites and in publications, provided ECCC is identified as the owner of the Quality Assured Integrated Data; and
(e) The sharing of data covered by this MOU does not preclude the development of other sharing agreements that may be required to support other programs and applications.

5.0 MEETINGS

Annual Management Meetings

5.1 The NAPS Program Managers or their designated alternate will meet twice a year to discuss the overall management of the NAPS Program, including sharing information on the Parties' respective air monitoring activities, budgets and resources, addressing issues related to the implementation of this MOU, technology transfer, and air monitoring policy updates.

5.2 The NAPS Program Managers will meet annually in person no later than June 21st. They will also hold an annual conference call no later than December 21st.

5.3 The annual in-person meeting will be co-chaired by the ECCC NAPS Program Manager and a NAPS Program Manager from a Province or Territory who will be selected by the Parties for a term of one year commencing at the time of the conference call.

5.4 The provincial or territorial co-chair will host the annual in-person meeting and, in collaboration with ECCC, will decide on the location for the meeting. ECCC will be responsible for the costs associated with the meeting room and secretariat services. Participants will be responsible for their costs to attend the meeting, including travel and accommodation.

5.5 In collaboration with the Provinces and Territories, ECCC will develop an agenda that will be distributed sixty (60) days prior to the annual in-person meeting.

5.6 ECCC will organize the annual conference call and be responsible for the costs associated with the call.

5.7 The summary and action items from the in-person meeting and conference call will be prepared by the ECCC secretariat. They will be distributed, reviewed, and actioned for the subsequent meeting or call.

Technical Meetings

5.8 The Parties may hold technical meetings, on an as-needed basis, to discuss specific issues related to the NAPS Program. If required, the Parties may establish technical committees to address any issues or other matters related to the NAPS Program. Depending on the nature of the technical meetings or committees, the Parties will decide among one another who will organize, host, attend and be financially responsible for these meetings or committees.

6.0 WORK PLANS AND ANNUAL REPORTS

6.1 Each Party will prepare a draft Work Plan and an Annual Report no later than sixty (60) days after the beginning of a Fiscal Year.

6.2 ECCC will collate and post on a password-protected clearinghouse (website) managed by ECCC

(a) the Parties' finalized Work Plans to become the NAPS Program Work Plan;
(b) the Annual Reports; and
(c) the meeting presentations, summary and action items of the annual in-person management meeting and conference call.

7.0 TERM AND REVIEW

7.1 This MOU will take effect on the Effective Date for a term of five (5) years, unless terminated earlier in accordance with the terms of this MOU.

7.2 Unless otherwise agreed to by the Parties, the Parties agree to review this MOU one (1) year prior to its expiry with the intent to continue their collaboration on the NAPS Program.

8.0 WITHDRAWAL

8.1 A Party may withdraw from this MOU by providing the other Parties with three (3) months' written notice confirming its intention to withdraw.

8.2 The Parties agree that should a Party to the MOU withdraw,

(a) The Quality Assured Continuous Data or Quality Assured Integrated Data made available by the withdrawing Party to any of the other Parties up until the official withdrawal date shall remain available to all the other Parties; and
(b) At its own cost, the withdrawing Party will remove and return to ECCC, no later than sixty (60) days after the official withdrawal date, all Monitoring Equipment and Sampling Media provided by ECCC.

9.0 AMENDMENT

9.1 Subject to section 9.3, this MOU may be amended at any time with the consent of all Parties. To be valid, any amendment to this MOU must be in writing and signed by all the Parties, while this MOU is in force.

9.2 The signing authorities for the Parties with respect to any written amendments to this MOU provided for in section 9.1 are the signatories to this MOU or such other representatives of the respective Parties who may occupy said positions from time to time.

9.3 For any proposed amendments made to the Annexes by one or more Parties, the written consent of only those Parties affected by the amendments is required. For the purpose of amending Annexes, those persons designated by the respective Parties to this MOU may sign on behalf of the Party they represent.

10.0 LEGAL STATUS

10.1 The Parties understand that this MOU constitutes an administrative agreement among the Parties and nothing in this MOU is to be construed as creating any financial, legal or contractual relations among the Parties enforceable by a court of competent jurisdiction. This MOU is entered into solely for the purposes of sharing information and better management of financial and technical resources of the Parties, which will result in more effective monitoring of air quality in Canada.

11.0 COUNTERPARTS

11.1 This MOU may be signed in several counterparts and each counterpart will constitute an original document; these counterparts taken together will constitute one and the same MOU. The Parties agree that signed counterparts will be transmitted electronically, e.g. by fax or email, and that such counterparts will be treated as originally executed signed documents. Each Party undertakes to provide the others with a copy of the original MOU bearing actual original signatures within a reasonable period of time following the signature of this MOU.

12.0 LANGUAGE

12.1 This MOU is prepared in the English and French languages, and each version is equally valid.

13.0 ENTIRE AGREEMENT

13.1 This MOU and its recitals and Annexes constitute the entire agreement among the Parties with respect to the subject matter of this MOU and supersedes all previous negotiations, communications, and other agreements, whether written or oral, among the Parties pertaining to such subject matter.

14.0 SIGNATURES

IN WITNESS WHEREOF, the Parties' duly authorized representatives have signed this MOU: