It has been said that doing what you've always done gets you
what you've always gotten.
On October 31, 2011, the Ontario Ministry of the Environment (the
"MOE") moved forward with the modernization of its
environmental approvals process. The MOE describes the new online
system as "smarter" and "faster". It is
intended to make environmental compliance easier for businesses, to
provide public access to information on businesses that impact the
environment and to assist with the enforcement of Ontario's
environmental standards. The changes will have a considerable
impact on Ontario's regulated businesses.
Impact on the Environment
When a business's activities impact the natural environment,
the business needs an approval from the MOE. Businesses in Ontario
must have MOE-issued environmental approvals if they:
(a) release contaminants into air, land, or water; or
(b) store, transport, or dispose of waste.
A business's environmental approval sets out legally
enforceable rules of operation. These rules seek to protect the
natural environment against emissions, discharges and wastes that
are produced by a business's operations.
Under the modernized system, a business may either register its
activity or apply for a compliance approval.
The New Regulations
New regulations under the Environmental Protection Act,
R.S.O. 1990, CHAPTER E.19 (the "Act") lay the groundwork
for a more streamlined approach to obtaining environmental
approvals. The new regulations are as follows:
1. O. Reg. 255/11: sets out the application process for the new
Environmental Compliance Approvals ("ECA"s); and
2. O. Reg 245/11: sets out the three prescribed activities under
the Environmental Activity and Sector Registry ("EASR")
(which are heating systems, standby power systems and automotive
refinishing).
Qualifying for an Environmental Compliance Approval( ECA)
Companies engaged in complex or unique activities or who have
more variable systems or operations must apply for an ECA. The ECA
replaces the former system of certificates of approval
("CofA"). The ECA allows for a single electronic form for
multiple activities and online tracking of approvals. With the
former CofAs, businesses had to apply for multiple approvals for
individual processes and pieces of equipment. For example, on a
single site, separate approvals were needed for air, noise, waste
and sewage activities. The introduction of ECAs means a single
approval for all activities at a site.
Under the ECA system, existing CofAs and their attendant conditions
will continue. If a pre-existing CofA includes an EASR-eligible
activity, the approval remains valid. The activity will only need
to be registered in the EASR if: (a) the conditions of the existing
CofA are modified; or (b) the existing CofA expires.
Any application for an environmental approval received after
October 31, 2011 must meet the minimum requirements of O. Reg.
255/11, which include completing a director-approved application
form and submitting applicable financial assurance estimates.
The application form is accessible through the ONe-Source business
portal on the Service Ontario website.
Qualifying to Register Activities in the Environmental
Activity and Sector Registry (EASR)
Companies engaged in standardized or routine activities and with
common systems and processes (to which preset rules of operation
can be applied) need not apply for approval; instead, they can
self-register on the EASR. Self-registration is a faster and easier
online process than applying for an ECA and also allows for an
online searchable database of registered activities. Currently,
three (3) activities/sectors qualify for the EASR (under O. Reg.
245/11). These activities are:
(a) heating systems (natural gas and propane);
(b) standby power systems; and
(c) automotive refinishing.
At this time, all other activities must proceed through the ECA
process; however, the MOE is currently proposing that the following
four (4) additional sectors be considered for the EASR:
(a) waste-collection-and-transport-by-truck;
(b) ready-mix concrete manufacturing;
(c)concrete product manufacturing; and
(d) lithographic, screen and digital printing.
(The MOE is encouraging comments on the proposed requirements and
conditions for the above sectors; the comment period closes on
February 25, 2012).
All eligible activities that have not received a CofA by October
31, 2011 will be required to register through the online EASR.
Businesses that have CofAs in place by the implementation date will
have five years to register their EASR-eligible activities. (Every
five years the registration must be updated; if there is any
earlier change in the original submitted information, the
registration should be updated earlier).
In order to register, and if the person engaging in the activity is
a corporation, a person with authority to bind the company is
required to certify that the information filed in the EASR is
complete and accurate.
Online registration is available through the ONe-Source business
portal on the Service Ontario website.
Significance
The MOE has taken a risk based approach in its processing of
approvals, with companies engaged in higher risk activities
proceeding through the ECA process and those engaged in lower risk
activities self-registering under the EASR.
The new process does not mean less regulation and environmental
standards have not diminished in any respect. Ultimately, the
approval process has become more streamlined; today, a business may
either register itself or apply for a single approval, depending on
the types of activities in which it is engaged. All of this may be
done online.
To date, the new environmental approvals regime seems to have
everything going for it: The administrative burden on businesses is
lessened. Public transparency is increased through a new searchable
website (Access Environment). And, lastly, the MOE has indicated
that the modernization of the approvals system seems to be driving
compliance.
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