The Environmental Review Tribunal has reduced the
usefulness of an important exception to the "waste" rules
in Regulation 347.For decades, there has been a tug-of-war between
the Ministry of the Environment and the waste
industry over the true scope of the ministry's jurisdiction. In
particular, what is and is not "waste"?
One very important exemption, set out in Regulation 347 under
the Environmental Protection Act is that most materials are exempt
from regulation as "waste", if they are "transferred
by a generator for direct transportation to a site, to be wholly
used at that site in an ongoing agricultural, commercial,
manufacturing or industrial process or operation used principally
for functions other than waste management..." The
Ministry has traditionally interpreted this requirement as meaning
that material must be entirely fed into the "ongoing
process". The MOE's Registration Guidance Manual for
Generators of Liquid Industrial and Hazardous Waste (amended June
2011) states that "...'wholly'...means that all of the
wastes must enter the process or operation..."
Now, however, the the ERT has ruled that the material must also
be totally consumed in the process, a , a requirements that
will rarely be met.
Waste: Wholly used means wholly consumed?
1076330 Ontario Inc. operates a hazardous waste facility for
liquid industrial waste (LIW). Cobric Chemicals processes spent
(fused) sodium hydroxide (SSH), using 107′s LIW. The MOE
issued an order to the companies requiring them to apply for a CofA
for the SSH processing operation and prohibiting them from
accepting wastewater for use in the operation. The companies
appealed. At issue was whether SSH and LIW are exempt wastes under
O.Reg. 347, as being "wholly used" in Cobric's
The appellants led no evidence as to the portion of SSH or LIW
that settles out during processing, or what happens to the sludge
that remains in the tank. The ERT found that all the wastes must be
consumed in that process or operation; it does not mean that
contaminants within the waste may enter the process, only to be
removed later from the product that is sold to the ultimate
This, they said, is consistent with an example set out in the
Manual, which permits incidental sedimentation to occur, but solely
in storage tanks where treatment is not intended. In this case, the
sludge was in a treatment tank. The SSH and LIW were not
"wholly used" in Cobric's process therefore are
"wastes" and do not fall within the Reg. 347 exemption.
Although the SSH and LIW are not pre-treated to separate out the
waste, the process incorporates waste materials that are not
"used" in the final product. These materials are filtered
out or remain on the bottom of the processing tank. Held: Appeals
dismissed. Neither company had a CofA to handle the SSH and this
must be removed from the site in accordance with the Orders.
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