Minister's Order: Agrifood Renewable Natural Gas for Transportation Demonstration Program [0006/2017]

Whereas the Government of Ontario recognizes the important economic and social contributions agriculture makes to Ontario;

Whereas Ontario's Climate Change Action Plan (CCAP) is a five year plan that will help Ontario fight climate change over the long term;

And whereas the CCAP will help Ontario meet its short and long term greenhouse gas (GHG) reduction targets through new policies and investment programs that will be funded by proceeds from the cap and trade program;

And whereas in support of these goals and to assist with reducing transportation emissions Ontario seeks to increase the availability and use of lower carbon fuels through potential programs and targets for greenhouse gas emission reduction;

And whereas the Government of Ontario seeks to encourage competitive systems and business models for the production of Renewable Natural Gas (RNG) from agrifood sources and the use of RNG as a transportation fuel in natural gas vehicles in order to reduce GHG emissions and initiate broader deployment of RNG transportation fuelling;

And whereas section 4 of the Ministry of Agriculture, Food and Rural Affairs Act provides the Minister with the authority in relation to the administration of laws relating to agriculture, food and rural affairs and all of their branches;

And whereas subsection 6.2 (1) of the Ministry of Agriculture, Food and Rural Affairs Act provides the Minister of Agriculture, Food and Rural Affairs with the authority to establish programs for the encouragement of agriculture, food and rural affairs within Ontario;

And whereas I believe that such a program should be established for the encouragement of agriculture in Ontario;

Now therefore and pursuant to subsection 6.2 (1) of the Ministry of Agriculture, Food and Rural Affairs Act a program to be known as the

Agrifood Renewable Natural Gas for Transportation Demonstration Program

is hereby established for the encouragement of agriculture in Ontario, including the encouragement of agricultural production and food processing.

Part I – Interpretation

Interpretation

  1. For the purposes of interpreting this Order and any Guidelines issued under it:
    1. Words in the singular include the plural and vice versa;
    2. Words in one gender include all genders;
    3. The headings do not form part of this Order or the Guidelines issued under it. They are for reference purposes only and will not affect the interpretation of this Order or any Guidelines issued under it;
    4. Any reference to dollars or currency in this Order or the Guidelines issued under it will be to Canadian dollars and currency;
    5. Any reference to a statute means a statute of the Province of Ontario, unless otherwise indicated;
    6. Any reference to a statute is to that statute and to the regulations made pursuant to that statute as they may be amended from time to time and to any statute or regulations that may be passed that have the effect of supplanting or superseding that statute or regulation unless a provision of this Order provides otherwise; and
    7. The words "include", "includes" and "including" denote that the subsequent list is not exhaustive.

Definitions 

  1. For the purposes of this Order and any Guidelines issued under it,

    "Applicant" means a Person who applies for funding under the Program;

    "Anaerobic Digestion Facility" or "AD Facility" means a system that produces biogas by digesting organic materials in the absence of oxygen.

    "Biogas" means a gas that contains a mixture primarily of methane and carbon dioxide produced in an anaerobic digestion facility.

    "Biogas Upgrader" means a technology that removes carbon dioxide (CO2) and other gases from biogas.

    "Business Day" means any working day, Monday to Friday inclusive, but excluding statutory and other holidays on which the Government of Ontario has elected to be closed for business;

    "Climate Change Action Plan" or "CCAP" means Ontario's plan to fight climate change, released in 2016.

    "CRAN" means the number that the Canada Revenue Agency has issued to a Person;

    "Crown" means Her Majesty the Queen in Right of Ontario;

    "Fiscal Year" means the period commencing on April 1 of a year through March 31 of the following year;

    "Funding Cap" means the maximum annual grant funding that an Ultimate Recipient may be entitled to receive calculated in accordance with the Guidelines;

    "Greenhouse Gas" or "GHG" means greenhouse gases described in section 5 of the Climate Change Mitigation and Low-carbon Economy Act, 2016.

    "Guidelines" means the written document prepared by the Program Administrator, or a third party in accordance with this Order, that sets out the rules, terms and conditions for the operation of the Program, or any component or sub-component thereof;

    "Minister" means the Minister of Agriculture, Food and Rural Affairs or any such other Minister who may be designated from time to time as the responsible Minister in relation to this Program in accordance with the Executive Council Act unless the context indicates otherwise;

    "Ministry" means the Ministry of Agriculture, Food and Rural Affairs and includes a successor entity;

    "Ministry of Agriculture Food and Rural Affairs Act" means the Ministry of Agriculture, Food and Rural Affairs Act, R.S.O. 1990, c. M. 16, as amended;

    "Natural Gas Refuelling Station" means a facility for the dispensing of natural gas fuel for natural gas vehicles;

    "Natural Gas Pipeline" means a pipe that is used for the transmission or distribution of natural gas;

    "Ontario" means her Majesty the Queen in Right of Ontario, as represented by the Minister of Agriculture, Food and Rural Affairs, unless the context indicates otherwise;

    "Order" means this Minister's Order, as amended from time to time;

    "Overpayment" means any Payment to which the Recipient is not entitled to receive at the time of the Payment or to which the Recipient ceases to be entitled to receive at any time after the Payment was made;

    "Payment" means the provision of funding under the Program;

    "Person" for the purposes of this Order includes a sole proprietor, corporation, partnership or an unincorporated association;

    "Pipeline Injection" means the movement of natural gas into a natural gas pipeline at proper pipeline quality and pressure standards as defined by the natural gas utilities.

    "Program" means the program entitled the "Agrifood Renewable Natural Gas for Transportation Demonstration Program" (or similar title) as delivered by the Ministry or a third party, including Ontario Centres of Excellence.

    "Program Administrator" means the Assistant Deputy Minister, Food Safety and Environment Division, at OMAFRA;

    "Project" means an undertaking approved under the Program;

    "Recipient" means a Person that receives a Payment under a TPA that is signed by the Minister or the Minister's authorized delegate;

    "Renewable Natural Gas" or "RNG" means biogas which has been upgraded through the removal of carbon dioxide and other gases, typically but not necessarily to meet the natural gas pipeline quality standards defined by the natural gas utilities;

    "Requirements of Law" means all applicable statutes, regulations, by-laws, ordinances, codes, official plans, rules, approvals, permits, licences, authorizations, orders, decrees, injunctions, directions and agreements with all authorities that now or at any time hereafter may relate to the Applicant, the Project or both;

    "Transfer Payment Agreement" or "TPA" means a transfer payment agreement that, depending upon the context, is entered into:

    1. Between the Minister, or the Minister's authorized delegate, and a Recipient, or
    2. Between a Recipient and an Ultimate Recipient;

    and

    "Ultimate Recipient" means a Person who receives a Payment from a Recipient.

Part II – Purposes and Term of the Program

Purposes

  1. The purposes of the Agrifood Renewable Natural Gas for Transportation Demonstration Program are:
    1. deploy commercial-scale projects that demonstrate the production and use of Renewable Natural Gas obtained from agricultural and food-based materials for transportation fuel in natural gas vehicles in order to reduce greenhouse gas emissions;
    2. support sector development activities for RNG production and fuelling so that the sector is equipped to move beyond the Program as the Government of Ontario pursues long-term climate change goals; and
    3. to do such other things as are commensurate with the preceding purposes.

Commencement

  1. The Program will commence on September 25, 2017.

Termination 

  1. The Program will terminate on March 31, 2021.
  2. Despite anything else contained in this Order or the Guidelines, the Program will automatically terminate in the event there is an insufficient appropriation from the Legislature for any payment that is to be made under the Program. Where the Program is terminated pursuant to this section of this Order, the following rules will apply:
    1. The Program Administrator will post a notice on the Ministry's website where a copy of this Order is posted indicating that the Program has been terminated and the date that the Program was terminated. This Program will be considered terminated as of that date;
    2. The Program Administrator will immediately provide notice of the termination to any third party that is delivering the Program and cause that third party to post a notice on its website indicating that the Program has been terminated and the date that it was terminated. The Program shall be considered terminated as of the date indicated in the notice; and
    3. Any payments otherwise due under this Program for which there is no appropriation will not be paid.
  3. Despite anything else contained in this Order or the Guidelines, this Program may be terminated at the Minister's discretion through the issuance of a Minister's Order terminating the Program, including in the circumstances where there may be insufficient proceeds from Ontario's auction of greenhouse gas emissions allowances to fund the Program. Where a Minister's Order is issued terminating this Program, the following rules will apply:
    1. The Program Administrator will post a notice on the Ministry's website where a copy of this Order is posted, along with a copy of the Minister's Order terminating this Program, indicating that the Program has been terminated and the date that this Program was terminated;
    2. The Program Administrator will immediately provide notice of the termination to any third party that is delivering the Program and cause that third party to post a notice on its website indicating that the Program has been terminated and the date that it was terminated. The Program shall be considered terminated as of the date indicated in the notice; and
    3. Any payments owing under this Program will be paid, unless the Minister's Order terminating this Program provides otherwise.

Part III - Funding

  1. Funding for this Program will be from the monies allocated to the Ministry by the Legislature for the purposes of the Program. The Program Administrator may provide to any Person any funding that is contemplated or permitted under the Program. The Program Administrator may pay for any administrative costs that the Program Administrator determines are reasonable or prudent for the administration of this Program.
  2. Funding allocated to this Program will only be used for the Program and the costs of administering the Program.

Part IV – Administration of the Program

Program Administrator

  1. The Program Administrator will be responsible for the administration and delivery of the Program. This includes:
    1. Establishing standards and procedures for the delivery of all aspects of the Program
    2. Monitoring the performance of all aspects of the Program;
    3. Establishing in the Guidelines:
      1. Administrative deadlines;
      2. Formulas for funding for the Program;
      3. Funding Caps;
      4. Process and evaluation criteria for merit-based funding;
      5. Additional definitions for the Program to those already established within this Order;
      6. Additional eligibility requirements to what are already expressly set out in this Order all Persons must meet in order to be eligible under the Program;
      7. Additional criteria to what are already expressly set out in this Order to exclude Persons from the Program;
      8. Rules, terms and conditions for making any Payments under the Program, including eligible and ineligible costs and eligible and ineligible activities, not already set out in this Order;
      9. Terms and conditions of the Program, including terms and conditions with respect to consultations when an established or asserted Aboriginal or treaty right may be adversely affected;
      10. Record-keeping requirements;
      11. Reporting and audit requirements; and
      12. Additional application rules (as needed)
    4. Approving anything that needs to be approved for this Program; and
    5. Carrying out all other administrative functions required for the successful operation of the Program.

Exercise of Administrative Powers 

  1. The Program Administrator has all necessary authority to deliver the Program.
  2. When exercising any powers granted under or complying with the requirements set out in this Order, the Program Administrator shall do so in compliance with all applicable Requirements of Law.
  3. Where the Program Administrator has selected a third party to deliver the Program, the Program Administrator shall require the third party to deliver the Program in compliance with all applicable Requirements of Law, including the requirements set out in this Order.

Guidelines

  1. The Program Administrator will create Guidelines for this Program, provided those Guidelines do not conflict with anything contained in this Order. For the purposes of determining whether the Guidelines conflict with this Order, without limitation, a conflict will be found if the Guidelines provide for something that is prohibited under this Order or if the Guidelines provide that something is not needed which is required under this Order.
  2. Where the Program Administrator creates Guidelines, those Guidelines will be posted on the Ministry's website where this Order is posted and on the website of the third party if the third party is delivering the Program.
  3. The Program Administrator may amend the Guidelines. Where the Program Administrator amends the Guidelines, the following rules will apply:
    1. A summary of the amendments to the Guidelines will be posted on the Ministry's website where the Guidelines and this Order are posted;
    2. Amendments to the Guidelines will be posted on the Ministry's website and on the website of the third party if the third party is delivering the Program; and
    3. Any amendments to the Guidelines will be effective as of the date set out therein.
  4. In no case will any amendments to the Guidelines have a retroactive effect. For greater clarity, a Recipient's right to a payment, if any, or an Ultimate Recipient's right to a payment, if any, that may be outstanding at the time any amendments to the Guidelines come into effect, shall, notwithstanding the amendments, be determined in accordance with the Guidelines in force at the time that their entitlement first arose.

Part V – Transfer Payment Agreements

  1. Without limiting the Program Administrator's general administrative authority under Part IV of this Order, the Program Administrator may enter into a TPA with any Person for the purposes of:
    1. Delivering the Program, including its operational control; and
    2. Contributing to the purposes of the Program.
  2. The Minister, through the Program Administrator, shall determine the terms and conditions of any TPA that the Minister may enter into under the Program, provided that the general terms and conditions for the TPA fulfill all requirements set out under the Government of Ontario's Transfer Payment Accountability Directive, as amended, as well as other applicable Government of Ontario directives.
  3. For greater certainty, the Minister, through the Program Administrator, may terminate a TPA with a Recipient if that Recipient is in non-compliance with the terms and conditions of the TPA the Recipient entered into with the Minister.

Part VI - Third-Party Delivery Agent

  1. If the Program Administrator enters into an agreement with a third-party to deliver all or a part of this Program, that agreement will include, at a minimum, the following:
    1. The roles and responsibilities for the Program Administrator and the third-party;
    2. The money that the third-party will receive for delivering the Program or a part thereof;
    3. Performance measures, if applicable and appropriate;
    4. Reporting and audit requirements; and
    5. Provisions for corrective action to address any events of default by the third-party.
  2. When delivering the Program, a third-party will do so in compliance with all Requirements of Law.

Part VII - Third-Party Having Operational Control of Program

  1. If the Program Administrator enters into an agreement with a third-party that gives the third-party operational control over this Program, that agreement will include, at a minimum, the following:
    1. The roles and responsibilities for the Program Administrator and the third-party
    2. The money that the third-party will receive for delivering the Program or a part thereof;
    3. Performance measures, if applicable and appropriate;
    4. Reporting and audit requirements; and
    5. Provisions for corrective action to address any events of default by the third-party.
  2. The Program Administrator may allow a third-party having operational control over this Program to create Guidelines for the Program.
  3. Where the Program Administrator allows a third-party having operational control over this Program to create Guidelines, the Program Administrator will review those Guidelines before they are operationalized by the third-party to ensure that those Guidelines do not conflict with anything set out in this Order. For the purposes of determining whether the Guidelines conflict with this Order, without limitation by the generality of the following, a conflict will exist if the Guidelines provide for something that is prohibited under this Order or if the Guidelines provide that something is not needed when this Order requires it.
  4. The Program Administrator will require the third-party to post a copy of this Order and the Guidelines on the third-party's website that relates to the Program.
  5. The Program Administrator may allow the third-party to amend the Guidelines. Where the third-party amends the Guidelines, the following will apply:
    1. A summary of the amendments to the Guidelines will be posted on the Ministry's website where the Guidelines and this Order are posted;
    2. A summary of the amendments to the Guidelines will be posted on the third-party's website that relates to the Program;
    3. The amended Guidelines will be posted on the third-party's website that relates to the Program;
    4. Any amendments to the Program will be effective as of the date set out in the Guidelines. In no case will the Guidelines have a retroactive effect. For greater clarity, any payments may be calculated based on date from a date previous to the effective date set out in the Guidelines and such calculations will not be considered to have a retroactive effect.
  6. The third-party taking operational control over the Program has all necessary authority to administer the Program.
  7. When operating the Program, the third-party will do so in compliance with all Requirements of Law.

Part VIII – Audits Under the Program

Consent 

  1. A Person that applies to the Program shall consent to any audits that may be conducted in relation to the Program as a condition of funding, so that any claims for Payment can be verified or for the enforcement of the terms and conditions of the Program. The Person shall further consent to the provision of all necessary information required to verify and administer the Program.
  2. A Person that applied to the Program shall be required to provide reasonable assistance to any auditor conducting an audit under the Program as a condition of funding. This includes allowing access to any person, place or thing required for auditing purposes.
  3. As a condition of funding, a Person that applied to the Program shall authorize the Program Administrator or third-party delivering the Program, including their respective delegates, to obtain information from any government department/ministry, agency or third party and to use it for the purposes of verifying the eligibility of any Payment that may be provided under the Program or any other information that that Person has provided under the Program.
  4. As a condition of funding, a Person that applied to the Program shall consent to the Program Administrator or third-party delivering the Program, including their respective delegates, to release information that they may have collected to any government department/ministry, agency or third party for the purposes of verifying the eligibility of any Payment that may be provided under this Program or any other information the Person has provided under the Program.

Part IX – General

  1. An application to the Program for a Payment shall not create a legal or other right to any Payment under the Program.
  2. Payments under the Program may be pro-rated.
  3. Payments made under the Program will be considered as income for tax purposes.
  4. A Recipient shall not assign any Payments made under the Program to a third person without first obtaining the prior written authorization of the Program Administrator.
  5. Any Payment a Person may be eligible to receive under the Program may be set off against any existing debt that that Person owes to the Crown. The right of set off is in addition to any other legal remedies that Her Majesty the Queen in Right of Ontario may have at law, equity or otherwise to recover any debt that a Person may owe to Her Majesty the Queen in Right of Ontario as a result of that Person receiving a Payment (through administrative error or otherwise) under this Program that that Person was not otherwise eligible to receive.
  6. The termination of the Program will not, in any way, negate the obligation of a Recipient of the Program to repay any outstanding amounts owing to the Crown under the Program.
  7. Any Person that provides false or misleading information under the Program shall have their participation in the Program immediately terminated. Any Payments that the Person received under the Program, including those provided prior to the submission of the false or misleading information, shall be deemed to be an Overpayment and shall constitute a debt that is owed to Her Majesty the Queen in Right of Ontario payable immediately upon demand.
  8. A Person that provides false or misleading information or was negligent with respect to the provision of information submitted under this Program will not be eligible to continue to participate in the Program, unless the Minister deems it appropriate to reinstate them.
  9. Her Majesty the Queen in Right of Ontario may charge interest on the debt that a Person owes as a result of receiving a Payment (through administrative error or otherwise) that that Person was not otherwise eligible to receive at the applicable interest rate that is charged by Her Majesty the Queen in Right of Ontario.
  10. Funding for this Program is being provided in connection with a social and economic policy and this Program is considered to be a social or economic program.

Part X - Eligibility Requirements under the Program

  1. No Person shall be considered eligible to participate in the Program established under this Order unless that Person meets all eligibility requirements set out under this Part of this Order and any applicable Guidelines.
  2. At a minimum, an applicant shall meet the following general eligibility requirements in order to be eligible to participate the Program established under this Order:
    1. Be a Person;
    2. Apply to the Program using a Program Administrator-approved application form;
    3. Submit a completed and approved application form as set out in the Guidelines;
    4. Submit the application form on or before a deadline as set out in the Guidelines, if a deadline is established;
    5. Enter into a contract and agree to comply with the terms and conditions of the Program as set out in this Order and in the Guidelines;
    6. Be in compliance with all Requirements of Law at the time that the application is submitted and remain in compliance with all Requirements of Law while participating in the Program;
    7. Be a Person that is member of a group of Persons that together in a complete supply chain:
      1. produce RNG from biogas produced by an anaerobic digestion facility located in Ontario that uses primarily agricultural or food-based feedstock, including manure, food waste and crops;
      2. consume all or part of the RNG fuel derived from clause (i) in a natural gas fueled vehicle based in Ontario as set out in the Guidelines;
      3. replace fossil fuel consumption with RNG in such a way as to create a significant and measurable GHG emission reduction or avoidance, by conforming to any standards that may be set out in the Guidelines; and
      4. undertake public demonstrations and openly share knowledge of their Project's details, business model and outcomes with others in conformity with any standards that may be set out in the Guidelines in this regard.

        and
    8. Have appropriate governance structures, accountability and control processes in place to administer and manage the grant funds.

Part XI - Eligible and Ineligible Costs

  1. "Eligible Costs" are those costs that are, in Ontario's sole and absolute discretion, properly and reasonably incurred, as well as paid or reimbursed by the Recipient or Ultimate Recipient, as the case may be, and are necessary for the successful completion of the Program or a Project. For greater clarity, the following costs are Eligible Costs and shall be eligible for funding under the Program:
    1. The costs of construction and equipment purchases and deployment, including those for
      1. Anaerobic digestion facilities
      2. Gas upgrading equipment
      3. Natural gas transmission, storage and related equipment
      4. Natural gas fuelling stations and related equipment
      5. Natural gas engines or natural gas engine conversions
    2. The costs of planning and design, including feasibility studies, engineering design, environmental, municipal, technical and other approvals;
    3. The costs of business planning, including legal, accounting, training, and financial expenditures;
    4. The costs of modelling, assessment, monitoring, accounting and reporting of operational data in order to report on project outcomes, including GHG emissions;
    5. The costs of technology testing, performance assessment, commissioning, and deployment;
    6. The costs of demonstration activities that support knowledge transfer about the funded activities;
    7. The costs of undertaking sector development activities, including
      1. studies to support Program or Project delivery and evaluation;
      2. sector training programs; and
      3. sponsoring sector events or workshops related to the Program.
    8. The costs of administration of the Program;
    9. The costs of administration of a Project; and
    10. Such other costs that are, in the Ontario's sole and absolute discretion, direct, incremental and necessary for the successful completion of the Program or a Project, as the case may be, provided that those costs have been approved in writing by the Program Administrator or an authorized third party agent prior to being incurred.
  2. The Program Administrator may add other Eligible Costs in the Guidelines, provided those costs are consistent with the purposes of the Program.
  3. The following costs are "Ineligible Costs", and are ineligible for funding under the Program:
    1. The costs of undertaking activities set out in section 46 for projects that produce or source RNG from landfill gas, gasification, or other non-anaerobic digestion biogas; and
    2. Such further and other Ineligible Costs as may be established in the Guidelines by the Program Administrator.

Part XII – Collection of Debt/Overpayments

Collection of Debts from a Recipient

  1. Any Payment a potential Recipient may be eligible to receive under any Initiative within the Program may be set off against any existing debt that that Person owes to Canada or Ontario.
  2. If a Recipient receives a Payment, or part thereof, from the Crown through administrative error or otherwise, that that Recipient was not otherwise entitled to receive under an Initiative, that Payment, or part thereof, shall be deemed to be an overpayment and shall constitute a debt that is owed to Canada and Ontario payable immediately by the Recipient upon demand.
  3. For greater certainty, the termination of the Program does not, in any way, affect a Recipient's obligation to repay the Payment that that Recipient received from the Crown, through administrative error or otherwise, under the Program if that Recipient was not eligible to receive that Payment to begin with.
  4. The right of set off is in addition to any other legal remedies that Canada or Ontario may have at law, equity or otherwise to recover any debt that a Recipient may owe to Canada or Ontario as a result of that Recipient receiving a Payment, through administrative error or otherwise, under any Initiative within the Program that that Recipient was not otherwise eligible to receive.

Collection of Debts from Ultimate Recipients

  1. A Recipient shall be required to collect any debts arising from an Ultimate Recipient receiving a Payment, or part thereof, from the Recipient, through administrative error or otherwise, that that Ultimate Recipient was not otherwise eligible to receive under the Initiative.
  2. For greater certainty, the termination of the Program does not, in any way, affect a Recipient's obligation to collect any debts arising from an Ultimate Recipient receiving a Payment, or part thereof, from the Recipient, through administrative error or otherwise, that that Ultimate Recipient was not otherwise eligible to receive under the Initiative.
  3. If an Ultimate Recipient receives a Payment, or part thereof, from the Recipient through administrative error or otherwise, that that Ultimate Recipient was not otherwise eligible to receive under an Initiative, that Payment, or part thereof, shall be deemed to be an overpayment and shall constitute a debt that is owed by the Ultimate Recipient to the Recipient and is payable immediately by the Ultimate Recipient upon demand.
  4. For greater certainty, the termination of Program does not, in any way, affect an Ultimate Recipient's obligation to repay the Payment, or part thereof, that that Ultimate Recipient received from the Recipient, through administrative error or otherwise, under the Initiative if that Ultimate Recipient was not eligible to receive that Payment to begin with.
  5. A Recipient may ask Ontario to set-off any debt that an Ultimate Recipient owes to the Recipient against any debt that Ontario may owe to the Ultimate Recipient.

Original signed by

The Honourable Jeff Leal
Minister of Agriculture, Food and Rural Affairs

Executed at Toronto, Ontario, on this 28 day of September, 2017


For more information:
Toll Free: 1-877-424-1300
E-mail: ag.info.omafra@ontario.ca
Author: Firstname SPACE Lastname SPACE HYPHEN SPACE Title/Affiliation
(eg. John Doe - Crop Specialist/University of Guelph)
Use a SEMI COLON to separate multiple entries:
(eg. John Doe - Crop Specialist/University of Guelph; Jane Doe - Crop Specialist/OMAFRA)
Creation Date: dd SPACE fullmonth SPACE yyyy
Last Reviewed: dd SPACE fullmonth SPACE yyyy