Toxics Reduction Act, 2009
In 2007, the Ontario government committed – during the election campaign and after re-election – to establish a toxics reduction strategy that would reduce pollution and protect the public from toxic chemicals in the air, water, land and consumer products.
To meet this commitment, in January 2008, the government established a panel of experts, the Toxics Reduction Scientific Expert Panel, to help develop a strategy to reduce the use and creation of toxic substances in Ontario. In August 2008, the Ministry of the Environment (MOE) published a proposed toxics reduction strategy. In June 2009, the province passed the Toxics Reduction Act, 2009 (TRA). Six months later, in December 2009, the province filed O. Reg. 455/09, the general regulation under the TRA. On January 1, 2010, both the TRA and O. Reg. 455/09 came into force, concluding a somewhat frenetic two-year process of policy development, public consultation, and legislative and regulatory enactment.
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Background
Ontario is home to thousands of facilities that routinely create, use and discharge toxic substances through the course of their day-to-day activities. As a result, Ontario is the largest discharger of toxic substances in Canada, and one of the top five dischargers of toxics in North America.
What are Toxics?
“Toxics” are chemical substances that are believed to be harmful to humans, animals and/or the natural environment. Toxic chemicals can be created in various ways – as a by-product during an industrial process, produced deliberately for a specific purpose, or as a breakdown product released during use or disposal – or they may occur naturally in the environment (such as metals and ammonia). In Canada, over 23,000 chemical substances are used commercially for a wide variety of purposes, with new substances being introduced each year. Exposure to these substances – through air, water, soil, food or commercial products – can result in adverse health effects to animals, plants and humans.
Key Features of the Toxics Reduction Act, 2009
The TRA requires all regulated facilities to:
- track and quantify how each “toxic substance” moves through their facility;
- develop a “toxic substance reduction plan” for each “toxic substance”; and
- prepare an annual report on the facility’s use, creation and release of toxics and its progress in implementing the toxic substance reduction plan.
Toxic Substances
“Toxic substances” are prescribed in O. Reg. 455/09 as any substance listed in the National Pollutant Release Inventory (NPRI), in the form specified in the most current NPRI Notice, as well as acetone. The NPRI is a national inventory of pollutant releases and emissions that is administered by the federal government. It currently lists 347 substances.
From this list of 347 prescribed “toxic substances”, O. Reg. 455/09 establishes a list of 47 priority (Phase 1) substances (and substance groups) that require immediate action. The priority substances include many notorious hazardous chemicals, such as asbestos, arsenic, benzene, mercury and a number of dioxins, as well as a number of metals and organic chemicals whose toxic properties may, perhaps, be less well known. The remaining (Phase 2) toxic substances are not subject to the TRA requirements until two years later.
Regulated Facilities
A facility is required to comply with the TRA for each prescribed substance if it:
- engages in manufacturing or mineral processing operations (except physical extraction, crushingor grinding); and
- is required to provide information relating to the substance pursuant to the federal NPRI, or, in the case of acetone, pursuant to O. Reg. 127/01, Airborne Contaminant Discharge, Monitoring and Reporting, made under the Environmental Protection Act.
Toxic Substance Accounting
Starting January 1, 2010, regulated facilities must identify and describe how each Phase 1 substance moves through every process of the facility’s operations, including how the substance is used or created, and how it is destroyed, transformed, released (into air, land or water) or contained in the product. The facility must also quantify the amount of the toxic substance that is used, created, destroyed, transformed, released and contained in the product in each process. This information forms the basis for the facility’s toxic substance reduction plans and annual reports.
Toxic Substance Reduction Plan
Within a year of completing the first toxic substance accounting period, the facility must prepare a “toxic substance reduction plan” for each prescribed toxic substance. The plan must: establish objectives for reducing the use and creation of the toxic substance; identify options for reduction; provide an analysis of the feasibility of each option; identify which options (if any) will be implemented; and describe the implementation plan and expected results. Facilities must provide a summary of this plan to the ministry and make it available to the public.
Annual Reports
Every year, the facility must prepare and submit a report to the ministry that summarizes the results of the most recent toxics accounting period, and that compares those results with past reporting periods. The annual report must also describe any steps taken to help achieve the facility’s toxics reduction objectives and the results of those actions. Most of the information in the report must be made available to the public.
Implications of the Decision
Reducing Toxic Substances
While the province already has a number of regulations that control chemical substances, almost all of the existing regulations focus on the traditional “end-of-pipe” release of substances into the environment. The TRA focuses on reducing the use and creation of toxics at the very beginning of industrial processes.
The TRA does not actually impose any requirements on industry to reduce the use or creation of toxic substances. However, the Act does require facilities to carefully examine how they use toxic substances in their operations and to identify and evaluate options to reduce toxics. The intention is that these exercises will highlight opportunities for reduction and encourage facilities to voluntarily reduce their toxics use. In addition, the requirement for facilities to publicly disclose their toxics accounting reports and summaries of their toxic substance reduction plans could also create public pressure to implement the plans.
It is hard to predict how effective the TRA will ultimately be at reducing the use, creation and release of toxics. Many stakeholders note that the existing federal NPRI program already requires facilities to track and report releases of the very same substances as the TRA, and therefore question how much more the added layer of TRA requirements will drive toxics reductions.
Many stakeholders also question whether the TRA’s focus on reducing the use and creation of toxics provides the greatest benefit. Reducing the use and creation of toxics should, in most cases, result in a corresponding reduction in toxics releases and exposure; in some circumstances, where there is no risk of exposure (because the toxics are chemically stabilized or transformed), reducing toxics use may provide no real benefit for human health or the environment.
Informing the Public
The second of the TRA’s two stated purposes is to better inform the public about toxic substance use in Ontario. To meet this goal, regulated facilities are required to publish detailed information about their current toxics use and their plans for reduction on the facility’s website. The reported information will provide a new source of data not just for the public, but also for government decision-makers, which should help inform future policy decisions relating to toxics. The Ontario government also plans to establish a user-friendly website that will help the public more easily find the information provided by the facilities on toxics in their communities and to monitor the progress of facilities.
As with the first goal of the TRA, many industry stakeholders believe that this second purpose is already being met through the existing NPRI. However, the TRA requirements for reporting and disclosure go much further than the NPRI, and along with the new provincial website, can be expected to provide a broader and more accessible source of information.
Cost and Regulatory Implications for Industry
The TRA imposes a number of new requirements on regulated facilities, which go well beyond the facilities’ current activities under the NPRI program. The costs and resources required to comply with the TRA’s new requirements are not yet known; however, some industry stakeholders assert that the costs of the new regulatory burden will be disproportionately high compared to the anticipated benefits of the program.
Public Participation & EBR Process
MOE undertook consultations on the toxics reduction strategy in three stages: on the proposed general strategy; on Bill 167 – the Toxics Reduction Act, 2009; and on O. Reg. 455/09 under the TRA. Despite three rounds of consultation, many industry commenters expressed dissatisfaction with the consultation process and expressed frustration that their input was not, in their opinion, being duly considered.
ECO Comment
The ECO applauds the Ontario government for its commitment to reducing toxic substances in the environment and supports the key principles underlying its toxics reduction strategy: that facilities should be aware of how they use toxics; facilities should reduce their use of toxics where possible; and the public should be entitled to know where and how toxics are being released into the environment and used in products.
The ECO also supports the aim of the TRA to shift the focus from the “end of pipe” management of chemical substances to the front-end use and creation of these substances. While the existing federal NPRI program focuses on gathering and publishing information on industrial emissions – and is indeed a valuable source of information on industrial releases – the driving intent of the TRA is toxics reduction. The TRA forces companies to seriously examine their processes, and through this self- examination, identify opportunities to reduce their use and creation of toxic substances.
Although the TRA creates new regulatory burdens for industry, it seeks to provide flexibility to facilities in reducing toxics. Rather than taking a prescriptive approach, such as mandating reductions of certain toxics (which would presumably impose greater costs to industry), the province opted to establish a voluntary approach that allows businesses to identify their own economically viable opportunities for reducing toxics. This type of program has achieved success in other jurisdictions and is an appropriate approach to regulating the use of toxics in Ontario.
While the ECO supports the TRA, the ECO has serious concerns about how this new legislation was developed. The province may have proceeded with unnecessary haste in drafting, passing and implementing the TRA and its supporting regulation in just 16 months. While the ECO appreciates the desire for quick action, this objective must be balanced against the need for careful consideration and proper consultation of proposals to ensure that the best policies are made. In this case, it seems that quick drafting and rushed consultations caused unnecessary problems and avoidable stakeholder anxiety. Better consultation and communication could have helped to achieve greater stakeholder buy-in and resolve controversial issues earlier.
For example, one of the big issues of concern for many industry stakeholders was which criteria should trigger the TRA requirements. In the proposed regulation, the TRA requirements would have been triggered for certain substances even if the substance was never emitted or was completely consumed in the manufacturing process (such as nickel in stainless steel products). When the regulation was passed in December 2009, the provision was revised to state that there must be a “release, disposal, or transfer for recycling” for all substances in order for the Act’s requirements to apply. Many industry stakeholders viewed this amendment as a welcome acknowledgement of their concerns. However, on April 1, 2010, MOE again amended the regulation to better align with the federal NPRI reporting requirements, with the result that some substances will again be captured under the TRA even if there is no release to the environment. The ECO is troubled by MOE’s flip- flopping on this provision, which caused confusion for the public. The ECO is even more dismayed that the ministry never even alerted the public to the impacts that these changes will have.
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| This is an article from the 2009/10 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2010. "Moving From End-of-Pipe to Front-End Toxics Reduction in Ontario." Redefining Conservation, ECO Annual Report, 2009/10. Toronto, ON : Environmental Commissioner of Ontario. 90-95.
