Now that the Toxics Reduction Act is in force, Ontario
companies are starting to collect data for their first annual
report on the first 47 groups of "toxic" substances. The
report is not due until June 1, 2011, but it must be based on data
to be collected on substances "used" or
"created" January to December of this year.
Ministry of the Environment staff have wrapped up their
cross-province compliance seminars, but here are some key issues
that remain unclear:
What is "used"? Do the new rules
apply to unintended and undisclosed contaminants of raw materials?
How would an organization know?
What is "created"? Anyone with a
combustion process will "create" short-lived
intermediates that never escape the furnace, and which cannot
practically be measured. In practice, these intermediates will
probably have to be ignored.
What is "approximately equal"?
Organizations will be required to redo their mass balance
accounting until their toxic substance inputs are
"approximately equal to" their outputs, in the hope of
identifying all significant material flows. Does that mean 80%
equal? 90%? 95%? 99.99%? The costs to business may vary
dramatically depending on how this requirement is interpreted. The
ministry is promising to provide "guidance" later,
"in the spring", but organizations need to collect data
An even tougher question is: What is a
"process"? To meet federal NPRI requirements,
most organizations regulated by this Act already know the
quantities of toxic substances that enter and leave their plants.
The MOE wants organizations to generate the same information at
every step of their internal operations, divided into numerous,
finely grained "processes"; the MOE gives examples of a
new "process" every time a different piece of equipment
is used. However, it is far from clear that this is what the law
The Act and Regulation 455/09 require each regulated
organization to quantify its substances at each step of a
"process". "Process" is not defined. Section 12
of the Regulation states: in determining how many processes a stage of the manufacturing
operation should be divided into... the owner and the operator of
the facility shall ensure that a sufficient number of processes are
identified for that stage to enable the owner and the operator to
meet the requirements set out in section 9 of the Act...
But section 9 of the Act sheds no light on the question: The owner and the operator of a facility... shall ensure that,
for each process at the facility that uses or creates the
substance, the substance is tracked and quantified, in accordance
with the regulations, to show how the substance enters the process,
whether it is created, destroyed or transformed during the process,
how it needs to process and what happens to it after it leaves the
The only defining feature of a "process" seems to be that
it creates, destroys, or transforms a toxic substance somewhere
along the way. Ontario's hard-pressed manufacturers and mineral
processing operations must therefore make an important choice when
they define their "processes" for the first annual
report. They will never be able to redefine them, and the number
and detail of the "processes" will have a major impact
upon the overall cost of regulatory compliance. They must therefore
think carefully, and think ahead, about which details are likely to
give them useful information about potentially cost-effective
changes to their operations.
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.
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