Originally published in Blakes Bulletin on Environmental Law, July 2007
On July 9, 2007, the City of Toronto Board of Health approved a recommendation from its chief medical officer of health to prepare a report on a proposed community right-to-know by-law concerning 25 toxic substances identified as priority health concerns. If passed, the by-law would require businesses to report to the City their use and emission of such substances. Thereafter, the information will be made available to the public via the Internet.
The by-law would affect businesses of all sizes, many of which are currently not required to report information under Environment Canada’s National Pollutant Release Inventory (NPRI). According to the recommendation put forth by the Medical Officer of Health, there are approximately 11,000 businesses in Toronto that may be using or releasing chemicals to the environment and may be affected by this by-law. At present, only 3 per cent of these businesses report to the NPRI.
Under the proposed by-law, businesses and facilities, regardless of their size, would be required to report annually on both their use and emission of priority substances. This differs from Environment Canada’s NPRI System, which only requires disclosure of emissions, not use, and generally excludes small facilities. The by-law would include numerical thresholds for each substance, however, the thresholds would be much lower than those used in the NPRI System.
The proposed list of toxic substances include carcinogens such as cadmium, trichloroethylene and formaldehyde. The affected business sectors include:
food and beverage manufacturing
printing and publishing
chemical manufacturing and distribution
medical and diagnostic laboratories
auto repair shops
The right of the public to access such information is often referred to as the "community right to know". Accordingly, under this by-law, the data reported to the City (through a web-based mechanism) would be made available to the public. In accordance with privacy legislation, some businesses may be able to avoid the reporting requirements for any of the following reasons:
the information constitutes a trade secret
the disclosure of the information would likely cause material financial loss to, or prejudice the competitive position of, the person providing the information or on whose behalf it is provided
the disclosure of the information would likely interfere with contractual or other negotiations being conducted by the person providing the information or on whose behalf it is provided.
In order to make reporting easier for small businesses, the Medical Officer of Health’s recommendation proposes to allow small businesses to estimate data through acceptable engineering procedures and to provide information on environmental best practices for substituting or reducing the emission of substances.
At present, the proposed by-law is still in its planning stages and there is no certainty that it will be passed by Toronto City Council. Nonetheless, businesses should be aware that if passed, the by-law could come into effect as early as the summer of 2009, with reporting requirements potentially beginning later that year. Following the July 9, 2007 approval, a report will be prepared by the spring of 2008 by the Medical Officer of Health outlining a draft by-law. The report will also address substance thresholds; reporting mechanisms; data management; supports for businesses; providing access to data; enforcement; financial implications for the City and consultation with stakeholders and residents.
This is the first municipal initiative of its kind in Canada and demonstrates an increasing willingness on the part of at least large municipalities such as Toronto to move into environmental regulation. There already exist municipal pesticide control or prohibition laws. However, chemical releases and exposures have generally been left to provincial environmental and worker protection authorities and toxic substance control, with all of its scientific complexities, has been exercised by the federal departments of the environment and health – Environment Canada and Health Canada. Clearly, Toronto businesses that handle chemical substances should pay attention to this initiative and consider getting involved in the City’s consultative process.
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