Copyright 2009, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Environmental Law, October 2009
Ontario recently released a draft regulation that will implement the new Toxics Reduction Act, 2009 (the Act), passed by the Legislature in June 2009. The Act and regulations will require prescribed manufacturing facilities to: track and quantify chemicals used or created by them; prepare chemical or "toxic substance" reduction plans; prepare summaries of the plans and make them available to the public; and report to the Ministry of the Environment annually on their progress in reducing the use or creation of such "toxic substances". This initiative by the Ontario government piggybacks on the National Pollutant Release Inventory (NPRI), which has been administered by Environment Canada since 1992 and also requires detailed chemical reporting that is subsequently made available to the public.
The draft regulation is intended to be in effect by January 1, 2010, when owners or operators of facilities using or creating one of 47 priority substances (such as arsenic, benzene and chlorine) in excess of the prescribed quantities and having the number of employees that meet the NPRI thresholds, must start tracking and quantifying the substance for each process. A first report to the government for these priority substances will be due June 1, 2011 and the first public summary of a toxic substances reduction plan will be due December 31, 2011. Other chemical users and manufacturers of the remaining non-priority substances prescribed by the NPRI (over 300 substances) will be required to start tracking and quantifying such substances two years later on January 1, 2012 and provide reports and summaries by June 1 and December 31, 2013, respectively.
A toxic substance reduction plan must include, in accordance with Section 4 of the Act:
1. A statement that the owner or the operator of the facility intends,
i. to reduce the use of the toxic substance at the facility, if the substance is used at the facility, and
ii. to reduce the creation of the toxic substance at the facility, if the substance is created at the facility.
2. If the plan does not include a statement that complies with paragraph 1, the reasons for not including the statement.
3. The objectives of the plan, including any targets for reducing the use or creation of the toxic substance at the facility.
4. A description of each process at the facility that uses or creates the toxic substance, including,
i. a description of how, when, where and why the substance is used or created, and
ii. quantifications that,
A. were made before the plan was prepared,
B. were used to prepare the plan, and
C. show, as of the time the quantifications were made, how the substance entered the process, whether it was created, destroyed or transformed during the process, how it left the process and what happened to it after it left the process.
5. A description and analysis of options that were considered for reducing the use and creation of the toxic substance at the facility, including an analysis of the feasibility of each option.
6. A statement identifying the options described in paragraph 5 that will be implemented, or a statement that none of the options will be implemented.
7. If an option described in paragraph 5 will be implemented,
i. a description of the steps that will be taken by the owner or operator of the facility to implement the option,
ii. a timetable for taking the steps described in subparagraph i,
iii. an estimate of the amount by which the use of the toxic substance at the facility will be reduced as a result of implementing the option, if the substance is used at the facility,
iv. an estimate of the amount by which the creation of the toxic substance at the facility will be reduced as a result of implementing the option, if the substance is created at the facility, and
v. an estimate of the amount by which discharges of the toxic substance to air, land or water will be reduced as a result of implementing the option, if the substance is discharged to air, land or water.
The draft regulation under the Act adds numerous other details that must be included in a toxic substance reduction plan, including process flow diagrams, costs related to the use or creation of the substance and the specific statements that must be certified by the facility's highest-ranking management employee. The public summaries of the plan must, among other things: identify the substances used or created at a facility; why they are used; and include statements of the facility's intention to reduce its toxic substances and the options to do so, and if not, an explanation of why not.
The proposed regulation requires that toxic substance reduction plans be reviewed in 2018 or every five years after they are prepared, unless a notice has been delivered to the Ministry that the Act no longer applies to a facility. A review must include, among other things: a reconsideration of the intentions or non-intentions to reduce the use or creation of a toxic substance(s); a determination of the need to change any reduction objectives or targets; a review of current tracking and quantification methods; and a review of all errors in the current plan. A new plan must then be prepared by December 31 of the review year, along with a summary and the summary delivered to the Ministry.
The June 1 annual reports to the Ministry contain similar content to that required in the toxic substance reduction plan summaries, but they are distinct documents. Some of the information contained in the Ministry reports and the plan summaries must be made available to the public via the Internet and upon request by any member of the public, at the time that a summary or report is made. This means that the summaries must be made public on or before December 31 of the year when the reduction plan must be prepared. In addition to the publication of a plan summary by the facility owner or operator, the Ministry is also authorized by the Act to post the reduction plan summary information on the Internet.
Ontario businesses must now report on their chemical quantities and use to both the federal and provincial levels of government. What is new is that the provincial
Act now requires that a chemical reduction plan be created, reviewed from time to time, summarized for the benefit of the government and the public and, hopefully, as a result of the process, regulated businesses will find ways to reduce their use of such "toxic substances". Why the overriding imperative to reduce costs that rule all business is not a sufficient incentive to do so is hard to fathom. However, there has been a steady cry from the environmentalist community in Ontario and elsewhere to push the chemical industry and its customers to reduce and ultimately eliminate the use of toxic and not-so-toxic chemicals.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.