Not Airtight: Amendments to Ontario’s Air Quality Regulation
Ontario is home to a range of industries, commercial operations and institutions, which regularly emit air pollutants. These pollutants contribute to health problems, such as asthma and other respiratory conditions, as well as environmental problems, such as smog and contamination of Ontario’s lakes and soils.
In 2005, to improve the province’s air quality and better protect public health from the impacts of air contaminants, the Ministry of the Environment (MOE) introduced O. Reg. 419/05 (Air Pollution – Local Air Quality), under the Environmental Protection Act (EPA).
O. Reg. 419/05 provided a much-needed overhaul of the province’s regulatory framework for industrial air emissions. The regulation established new requirements for dispersion modelling and emissions reporting, as well as more up-to-date air quality standards (i.e., limits on the maximum permitted concentration of discharged contaminants at a facility’s property line) for many substances.
Since 2005, the ministry has developed 59 new or updated air quality standards, which are generally much stricter – some as much as 100 times stricter – than the earlier standards. These new or updated standards have been set based on health and environmental effects, without considering economic constraints. This means that the concentration limit is set at a level that is believed, based on the best available science, to be safe for human health and the natural environment.
When passed in 2005, O. Reg. 419/05 provided facilities with two compliance options.
- A facility may meet the prescribed air quality standards for each contaminant discharged by the facility by the required date (i.e., February 1, 2010 or February 1, 2013), and demonstrate compliance with these limits through an Emission Summary and Dispersion Modelling (ESDM) Report.
- If it is not technically or economically feasible to meet the air quality standards by the applicable phase-in date, a facility may apply for a “site-specific alteration of a standard.” This process requires the facility to complete: an ESDM Report; a technology benchmarking report; public consultation (including at least one public meeting); and an action plan to implement and monitor progress.
Sector-Based Technical Standards
On December 22, 2009, the province amended O. Reg. 419/05 to establish a third option for compliance with O. Reg. 419/05. Rather than require each facility facing challenges meeting the air quality standards to apply for an individual site-specific alternative standard, the amendments authorize MOE to develop sector-based technical standards that can apply to multiple facilities experiencing common issues.
The details of each technical standard are set out in the ministry’s Technical Standards to Manage Air Pollution. This publication sets out the list of industry sectors, contaminants and sources of contaminants that are included in the standard, the steps facilities must take to comply with the standard, and the timelines for compliance. The standards may include technical and operating requirements (such as mandatory equipment and operating, maintenance and engineering practices) as well as requirements for public notification and consultation.
Facilities that wish to rely on a technical standard must apply to MOE to register under the standard. The MOE Director can refuse an application or revoke a registration if the Director believes that air emissions from the facility may cause an adverse effect that would be better prevented if the technical standard were not applied. Registered facilities that comply with all the requirements in the technical standard by the specified deadline are exempt from the air quality standards in O. Reg. 419/05 for any contaminants covered in the technical standard.
The sector-based approach should reduce the administrative burden for MOE, as well as reduce the costs and regulatory burdens on facilities seeking relief from compliance with the air quality standards. Not only is the registration process for the sector-based technical standards simpler than the site-specific alteration of standards process, the sector-based approach will also provide ongoing regulatory relief for registered facilities, particularly from the rather onerous ESDM and reporting requirements. The sector-based technical standards should also ensure that technical and operating requirements are applied more consistently across a sector, creating a more level playing field within industry sectors than the site-specific alternative process.
To date, the ministry has established two sector-based technical standards: one for the “forest products” sector and one for the “foundry” sector.
Public Participation & EBR Process
MOE carried out a commendable public consultation process on this proposal, providing a 90-day Environmental Registry comment period and several stakeholder consultation sessions. The ministry received 45 comments on the proposal from industry groups, environmental non-governmental organizations (ENGOs), municipal public health units (PHUs) and environmental consultants.
Industry commenters generally supported the sector-based approach, stating that it was an improvement over the more onerous site-specific alternative process. Conversely, many PHUs and ENGOs opposed the proposal, commenting that the amendments undermine the environmental protections provided by the air quality standards. These stakeholders raised many concerns, including the proposal’s failure to: require registered facilities to submit ESDM reports; include expiry dates or mandatory review periods for the sector-based standards; consider cumulative effects; and include requirements for public notification and consultation.
MOE’s decision notice was clear and informative and provided useful summaries of the comments received and the changes made. In response to stakeholder concerns, MOE added a new authority to develop an “equipment standard” for a single source of contaminants (e.g., a wood waste combustor) that can be applied to multiple sectors, as well as the authority for MOE to require a facility to provide an ESDM report. MOE also prescribed the new facility registrations under the EBR, requiring these proposals to be posted on the Environmental Registry for public comment.
ECO Comment
Ontario’s general framework for regulating air emissions provides a reasonable and balanced approach. It allows the ministry to set a high bar through its environmental and health-based air quality concentration limits, and then places the onus on facilities to either meet those limits or demonstrate that they cannot due to technological and/or economic barriers. This approach is preferable to setting concentration limits based on what is achievable for all facilities, which would result in standards that reflect the lowest common denominator. This approach also appropriately acknowledges the challenges for certain facilities or sectors to feasibly meet all of the air quality standards.
However, for this regime to succeed in maximizing emission reductions, the ministry must ensure that its policies for exempting facilities from the air quality standards remain rigorous. The new amendments provide the ministry with considerable latitude to develop sector-based technical standards (i.e., there need only be two facilities within a sector that cannot technically or economically feasibly comply with the air standards). The ECO hopes that the ministry will use the alternative approaches (both the site-specific alterations and the sector-based technical standards) sparingly and only when compliance with the air quality standards is truly unachievable. If applied too widely, the sector-based approach could negate much of the benefit of the recently developed air quality standards, normalizing long term non-compliance of the air quality standards and transforming the legally binding standards into mere objectives or targets.
The ECO believes that MOE’s claims regarding the potential of the new sector-based approach to improve environmental protection are overstated. This approach could achieve some emission reductions by bringing otherwise non-compliant facilities into the sector-based system. However, on a whole, the new sector-based approach provides a reduced level of environmental protection compared to the regulatory air quality standards and the site-specific alternative standards.
The sector-based standards do not include concentration limits and will allow registered facilities to emit higher levels of toxic emissions than under the air quality standards. Moreover, there is no expiry date for facility registrations (unlike the site-specific alternative standards, which last only five years), nor any requirement for the periodic review of the technical standards. Thus, the sector-based approach fails to encourage innovation or set a path for continuous improvement to reduce emissions, even where new technologies become available or costs come down. The technical standards also allow facilities within the foundry and forest products sectors to defer compliance with the new air quality standards for lead and acrolein for several more years.
In some cases, the sector-based approach could potentially discourage facilities from making greater environmental improvements. Because any facility – even one that can feasibly comply with the air quality standards – can register under an applicable technical standard, some facilities that might otherwise have worked to meet the air quality standards might now choose to rely on the less stringent technical standards instead.
To ensure that the new sector-based technical standards actually push reductions in air emissions and improve air quality, the ECO urges the ministry to ensure that the technical standards embrace innovation and reach well beyond existing requirements. If the technical standards simply adopt requirements that are already widely included in Certificates of Approval and best management practices, the new sector-based approach will not result in significant emission reductions. Similarly, the ECO urges MOE to vigilantly use its powers to refuse or revoke a facility’s registration under a technical standard where the ministry believes that the facility’s emissions may cause an adverse effect.
The ECO also urges the ministry to include reporting requirements in all sector-based technical standards. Removal of public reporting requirements contributes to a loss of public scrutiny and reduced pressure for the ministry to impose further emission reductions. Further, without full ESDM reporting, there will be no way to track progress in emission reductions and assess the effectiveness of the technical standards. The ECO urges the ministry to track and report publically on the progress of the technical standards in reducing emissions, starting by developing and publishing baseline information (such as current emission levels) for the sectors subject to technical standards.
The ministry should also set performance objectives for the technical standards. Where standards do not meet the performance objectives, and/or where new technologies become available or costs come down, the ECO strongly urges the ministry to review and revise the technical standards to ensure that industry makes continual improvements to reduce emissions.
The ECO also urges the ministry to ensure that this new reform is supported by adequate inspection and enforcement capacity. With no ESDM reporting requirements under the sector-based standards, and thus no means to assess the level of contaminants being emitted, a strong site inspection program is critical to ensure that facilities are not causing adverse impacts on the environment or public health.
Finally, MOE has acknowledged for years that more work is required to address the cumulative impacts of air emissions; yet little improvement has been made in this area. Assessing and controlling cumulating loadings of toxic emissions is important to ensure that the environment and the public are not exposed to harmful levels of pollutants. Unfortunately, the removal of reporting requirements in the sector-based standards further reduces the ability of the ministry to calculate total pollutant loadings and address the cumulative impacts of pollutants released to the environment. The ECO encourages the ministry to move forward on efforts to track and control cumulative loadings of air pollutants.
| Recommendation 7:
The ECO recommends that the Ministry of the Environment include reporting requirements in all sector-based standards to ensure that information on industrial air emissions remains publicly available. |
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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. "Not Air Tight: Amendments to Ontario's Air Quality Regulation." Redefining Conservation, ECO Annual Report, 2009/10. Toronto, ON : Environmental Commissioner of Ontario. .
